Planning (Wales) Act 2015
Background to the Act
The Planning (Wales) Act 2015 (the “Act”) received Royal Assent yesterday. It is not a wholesale reform of the planning system in Wales but it is the first separate Planning Act for Wales since planning was devolved to Wales in 2011.
The "Act" aims to address 5 objectives:
- a modernised framework for the delivery of planning services (e.g. by enabling some planning applications to be made directly to the Welsh Ministers);
- strengthening the plan led approach (e.g. by the introduction of a National Development Framework and Strategic Development Plans);
- improved resilience (e.g. by enabling the Welsh Ministers to direct that local planning authorities work together and be merged);
- frontloading and improvement of the development management system (e.g. by introducing a statutory pre-application procedure for certain planning applications); and
- enabling effective enforcement and appeals (e.g. by way of changes to enforcement procedures and increased transparency and efficiency in the appeal system).
National Development Framework
The Act makes provision for the preparation and revision of a National Development Framework for Wales (“NDF”). The NDF is a national land use plan which will set out Welsh Government’s policies in relation to the development and use of land in Wales. This replaces the Wales Spatial Plan.
The Act gives the Welsh Ministers a power to designate an area of Wales as a strategic planning area and establish a strategic planning panel for that area. These will be to deal with cross boundary issues, for example, waste disposal. A strategic planning panel must prepare a plan for its strategic planning area, known as a strategic development plan (“SDP”). An SDP must be in general conformity with the NDF. Three possible areas have been identified – Cardiff, Swansea and the A55 corridor. Not all areas of Wales will have an SDP.
Local Development Plans (LDPs)
The Act provides that an LDP must be in general conformity with the NDF and any SDP which includes all or part of the area of the authority. Following the publication of the NDF, local planning authorities will be under a duty to consider whether to carry out a review of their LDP. The same duty will exist where an SDP is adopted or approved and the area of a local planning authority is included in the strategic planning area.
Pre-application consultation and services
The Act introduces a statutory requirement for pre-application engagement with specified persons which are likely to include the public and statutory consultees where the development is of a specifed type. It is thought that this will include DNS and major developments. The Welsh Ministers will be able to make regulations which cover the pre-application services to be provided by them and by local planning authorities.
Applications to the Welsh Ministers
The Act introduces two instances where direct planning applications either must or could be made. These are as follows:
1. Developments of National Significance (“DNS”)
The Act provides that applications for a new category of planning applications known as developments of national significance (“DNS”) are to be made directly to Welsh Ministers instead of to the local planning authority. Those applications which are to constitute DNS are to be specified in regulations made by the Welsh Ministers. These are likely to follow a similar procedure to that which applies in the case of Nationally Significant Infrastructure Projects.
The DNS provisions in the Act allow decisions in respect of secondary consents (i.e. connected to the DNS application) to be made by the Welsh Ministers instead of the person who would otherwise make that decision.
The determination period for an application for DNS is 36 weeks, beginning with the date on which the application was accepted by the Welsh Ministers.
Please see our separate briefing note on the impact of the Act on energy generation projects for further details.
2. Optional direct applications
The Act allows an applicant to choose to make an application to the Welsh Minister if the applicant so chooses where the local planning authority has been designated as under-performing and the application meets certain criteria (yet to be defined). There will be no right of appeal from a decision made following a direct application.
Town and Village Greens
The Act introduces trigger events in Wales which prevent the registration of a Town and Village Green unless and until a terminating event (also provided for in the Act) occurs. This brings village green legislation in Wales in line with what is already in place in England. The main trigger events that are introduced for Wales include where an application for planning permission has been granted and where land has been allocated for development in a development plan. In addition landowners will have the power to make a declaration ending use ‘as of right’ over land.
The Act seeks to prevent developers from repeatedly submitting applications or appeals where they have failed to obtain planning permission so as to delay effective enforcement action. The Act provides a power for local planning authorities to require the submission of a retrospective planning application. If a retrospective planning application is not submitted, an enforcement notice may then be served. Local planning authorities will also be given the power to refuse to determine a retrospective planning application where the development is subject to an enforcement notice.
Validation appeal procedure
A new validation appeals procedure, to the Welsh Ministers, is intended to resolve validation disputes quickly. The appeal procedure will deal solely with whether an application is valid and will be dealt with by written representations only.
This will be much more ‘front-loaded’ than currently. There may not be a choice as to how an appeal is determined but costs may be recovered for written representation appeals. There will be no ability for developers to make minor changes once an appeal is lodged. There will be an option for the Welsh Ministers to recover some of their costs.
The size and procedures of planning committees will be standardised and there will be mandatory training for members. Fewer planning applications will go to planning committees.
‘Living’ decision notices
Planning permissions will be updated to reflect e.g. discharge of planning conditions and amended plans.