The Welsh Government has set out proposals to improve the handling of appeals, call-ins, and other planning and related decisions made by Welsh Ministers in the consultation document "Planning and Related Decisions of the Welsh Ministers" (2014 Consultation).

Access the full consulation here

The 2014 Consultation forms part of wider proposals to improve the national delivery of the planning system in Wales. The draft Planning (Wales) Bill and consultation "Positive Planning" (2013 Consultation) identify the need for a "change in attitude away from regulating development towards encouraging and supporting development" and set out a number of proposals to modernise the planning system in Wales through changes to primary legislation, secondary legislation, policy and guidance.

The 2014 Consultation covers the following:

  • expedited advertisement appeals in line with the Householder Appeal System and Commercial Appeal System, which are currently subject to a pilot scheme
  • changes to how called-in applications and appeals by statutory undertakers are dealt with
  • ability for an appeal against non-determination to be returned to the local planning authority for a decision within a prescribed timescale, and
  • transfer of authority for the determination of certain appeals from the Welsh Ministers to the Planning Inspectorate.

The 2014 Consultation runs from November until 30 January 2015.

Expedited control of advertisement appeals

The Householder Appeals Service (HAS) and the Commercial Appeals Service (CAS) which were put forward in the 2013 Consultation have been operating as pilot schemes since 2010 and 2013 respectively, providing a "fast-track" for certain specified developments. This included limits on documentation, specified timeframes and a more efficient procedure for site visits. The HAS pilot in particular has been highly successful in reducing the average determination period for appeals relating to householder developments.

It is the Welsh Government's intention to take the HAS and CAS proposals forward more widely. The 2014 Consultation seeks views on the inclusion of advertisement consent appeals within the CAS, in order to increase the speed of these decisions and ensure the most proportionate method of examination is used.

Called in applications and appeals by statutory undertakers

Whilst a large proportion of development by statutory undertakers is classified as permitted development, there are circumstances where planning consent from the local authority is required.

Where an application in Wales, made by a statutory undertaker, is called in for determination by the Welsh Ministers, or a decision by a local planning authority is appealed by a statutory undertaker, that call-in or appeal is required to be dealt with jointly by the Welsh Ministers and the appropriate Minister (with the exception of applications made by water or sewerage undertakers)[1].

The effect of this is that these call-ins or appeals are determined jointly by the Welsh Ministers and the appropriate UK Minister (e.g. the Secretary of State for Transport). This causes significant delay to the process, increases costs and leads to duplication.

The Planning Act 2008 provides a mechanism by which the requirement is disapplied for applications by statutory undertakers that are either called in or appealed to be determined by Welsh Ministers and the appropriate Minister acting jointly. Instead a joint determination shall only occur where the Secretary of State or the appropriate Minister gives a direction to deal with it jointly.

The November 2014 document seeks views on whether the 2008 Act mechanism should be invoked; i.e. this would make the default position for called in applications and appeals by statutory undertakers as being dealt with solely by the Welsh Ministers unless otherwise directed.

Non-determination appeals

The 2013 Consultation sought views on two proposals. Firstly, it proposed to amend secondary legislation to allow non-determination appeals to be submitted any time following the ending of the statutory period for determination up to the point of determination of the application (i.e. removing the current 6 month maximum time limit). This would be particularly helpful where an extension of time to determine the application is not agreed with the local planning authority, as it gives applicants who would currently lose their ability to appeal the right to do so.

The second proposal of the 2013 Consultation was to enable local planning authorities to determine an application which is subject to a non-determination appeal within a "prescribed timescale" following submission of an appeal. The purpose of the prescribed period is to allow a short period of dual jurisdiction between the Welsh Ministers and the local planning authority where an appeal has been lodged against non-determination of a planning or listed building consent application after the 8 week period for determination has finished. This would allow an additional period of time in which the local planning authority retains the power to issue its decision despite an appeal having been lodged. In such cases, the appeal will progress through the usual appeal procedures, unless and until a decision on the application by the local planning authority is made. It is proposed that, where the local planning authority refuses permission within this additional period, the appeal against non-determination will become an appeal against refusal. If the local planning authority grants permission, the appellant may withdraw the appeal or proceed with the appeal on revised grounds (e.g. an appeal against conditions which may have been imposed). It is intended that the prescribed period should provide sufficient time for the local planning authority and applicant/ appellant to continue a dialogue to allow agreement to be reached where appropriate. This would prevent the need to go through the full appeal procedure despite the local planning authority having come to a view after the submission of the appeal that it would have granted permission. The proposals would apply to both planning and listed building appeals. The November 2014 document seeks views on the length of the additional period of time for the authority to issue its decision once the appeal is lodged, and proposes 4 weeks.

Changes to the Prescribed Classes Regulations

There are a number of classes of appeal which, whilst they are dealt with by the Planning Inspectorate, are reserved for final determination by the Welsh Ministers. This can add up to an additional 12 weeks to the appeal process. Therefore the 2014 Consultation seeks views on proposals to make changes to the Prescribed Classes Regulations[2], transferring the authority to determine certain appeals from the Welsh Ministers to the Planning Inspectorate.   However, the Welsh Ministers will still retain the power to recover an appeal if considered appropriate.

Commentary

Overall, the proposed changes aim to increase the efficiency of the wider planning appeals process, and to enable more appeals to be determined in a shorter space of time.  Introducing initiatives such as including advertisement consent appeals within the CAS will help meet this aim.  There are also clear benefits for the applicant in removing the six-month appeal timeframe where there is non-determination of an application, as well as potential cost reductions should the authority grant consent once the appeal has been lodged.  In deciding to consult on the changes Welsh Government has had regard to the experience of similar changes in England, but it is concerned to ensure that the proposed changes are right for Wales.  The consultation ends on 30 January 2014.