News: 14 November 2017A New Planning Code for Wales

On behalf of the Welsh Government, the Law Commission is currently undertaking a project that will simplify and consolidate all planning laws that apply in Wales. We recently attended an RTPI Cymru event to discuss the proposals and hear early reactions to initial drafts.

The Law Commission’s Consultation Paper will be published mid-November. The Paper is a substantial document setting out a wide range of technical reforms, which if accepted will eventually result in a new Planning Code in 2020. 

The Planning (Wales) Act 2020 would replace all or part of more than 25 Parliamentary and Assembly Acts, including the Town and Country Planning Act 1990, which has been amended and supplemented numerous times. The planning system has become increasingly difficult to navigate in Wales due to the quantity and complexity of primary legislation relating to land use and development. It is particularly difficult to establish what legislation is relevant to both England and Wales, England only or Wales only. 

The Law Commission propose a single co-ordinated Planning Code to comprise:

  • Planning (Wales) Act 2020;
  • Secondary legislation; and
  • Government Guidance.

The Law Commission set out proposals for a Planning Bill, which would become an Act, if and when approved by the National Assembly:

“The Bill would include much of the law that exists at present, but in a clearer pattern, and in a single piece of legislation rather than spread over numerous Acts; and it would clarify various points of detail. But it would omit a number of provisions that are of no continuing utility.”

It is inevitable that Governments in London and Cardiff Bay will continue to amend and supplement planning legislation and that this will lead to further separation between the Welsh and English systems. As such any initiative to simplify legislation in Wales is welcomed.

Based on our first view of the Consultation Paper Summary we have some initial thoughts about a few specific topics and proposals set out in the Paper.

The Law Commission provisionally propose to abolish outline planning permission and to have a single procedure in its place. Our main concern is that it could be far more difficult for large strategic sites to come forward without an outline application option being in place where the applicant can choose which matters of detail to reserve. More information from the Law Commission on how this would work in practice is required.

Pre-commencement conditions are discussed in the Paper in terms of the uncertainty as to their effect in law. The Law Commission provisionally consider that certain conditions could be categorised as “true conditions precedent” which go to the “heart” of the permission. Would this mean that there would be two types of pre-commencement conditions? This is likely to increase complexity rather than simplify the process.

The Law Commission also consider there would be advantages from merging planning permission, listed building consent and conservation area consent into a single form of approval. Overall, we are in favour of a simplified approach.

We await the full Consultation Paper with interest, where we will have an opportunity to comment fully, focussing on both the positive and negative impacts of the proposed reforms. Watch this space or get in touch with our team.

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