Is Wales heading towards a coherent planning code? Law Commission publishes proposals for consultation

01 Jan 2018

Planning and Environment

Planning Law in Wales, the consultation published last week by the Law Commission, is a detailed assessment of the planning system, and its statutory framework, with particular concern for the way it applies in Wales and how that might be improved. The consultation period runs from publication on 30 November 2017 until 1 March 2018.

The Law Commission’s work began with a scoping paper issued in June 2016. Responses to last week’s consultation will inform its recommendations to Government in 2018, intended to inform the production of a Planning Bill, the principal element of a new Planning Code for Wales.

There is little mention of the Brexit process and, naturally enough, no speculation as to its impact, save in one or two very specific instances (EIA being one).

The following are amongst the notable features of the Law Commission’s proposals:

• To retain the principal elements of the definition of development, and to include within it:

o All works to increase the internal floorspace of a building (Question 7-2)
o Any change in the number of dwellings within a building – whether this involves an increase or a decrease (question 7-5)

• For all applications for planning permission to be deemed to include an application for a certificate of lawful proposed or existing use or development (question 7-12)
• To abolish outline planning permission in favour of the grant of permission subject to conditions reserving some details for future approval (question 8-1)
• To extend the s38(6) duty to all public bodies exercising any function under the Code, and to use the phrase “relevant considerations” in place of “material considerations”
• To make explicit the power to impose conditions of particular kinds including Grampian and pre-commencement conditions (questions 8-12 and 8-13)
• To bring together the procedures for amendment of planning permissions currently within sections 73 and 96A of the 1990 Act (questions 8-23)
• To include the breach of a planning obligation within the definition of a breach of planning control (question 10-5)
• To amend the planning enforcement provisions in ways designed to simplify and clarify the present state of the law and practice in Wales (see Chapter 12)
• To alter the application process governing works affecting listed buildings and conservation areas without diluting the level of protection afforded by the existing arrangements (see Chapter 13)
• To clarify the definition of “advertisement” and for deemed consent under the Advertisements Regulations to be granted where a display has the benefit of planning permission (see Chapter 14)
• To require that all High Court challenges to decisions under the Planning Code be by way of judicial review (see Chapter 17)

In particular, practitioners should note that:

• The reforms would not affect the DCO process under the Planning Act 2008, which is not a devolved matter, and would retain the application process for Development of National Significance with some changes (see Chapter 9)
• The EIA process would be left where it is now, governed by the 2017 Regulations (see 8.170 and following)
• The question is posed (question 6-3) whether Strategic Environmental Assessment of plans and programmes is required in addition to the duty to carry out sustainability appraisal – albeit reform will not form part of the Planning Code
• CIL will be devolved to Wales once the changes made in the Wales Act 2017 have been implemented and it’s proposed to include s106 and CIL provisions within the Planning Bill (see Chapter 10)
• Compulsory purchase and compensation are to be excluded from the Planning Code, as is building control and other self-contained codes (transport infrastructure, mobile homes being examples)
• The authors consider the new section 78A (only in force in Wales), which allows the authority to continue to negotiate on a planning application for a period of four weeks after an appeal has been made, useful and propose to retain it (paragraph 8.66)
• They “provisionally agree [with English lawmakers] that a duty to provide reasons for a grant of planning permission seems unnecessary” (paragraph 8.85)
• The authors assume that the 2008 Act reforms to the law as it relates to the protection of trees (introduced in England in 2012) are implemented in Wales, and consider potential changes in some detail within Chapter 15

Planning Law Wales contains a wide ranging assessment of the law of England and Wales, and the consultation process is likely to deliver much of interest to practitioners in both jurisdictions.

Equally, the proposals (if enacted) would represent a fundamental divergence between the planning systems in England and Wales, which could have profound implications for the growth agenda in Wales.

The summary has been pepared by Harriet Townsend, a member of the Cornerstone Planning Team.

Our team can help organisations and businesses to navigate the law and regulations that apply to planning, and is able to provide the expertise to support those responding to this consultation. Please contact for more information.