Proposed legislation signals step change for major infrastructure projects in Wales

The proposals (106 pages / 698KB PDF) aim to replace the current regime of seeking planning consent through the ‘Developments of National Significance’ regime while then also having to obtain other necessary consents separately – including, importantly, for the compulsory acquisition of land – with a ‘one stop shop’ consenting regime.

The Bill clearly uses the 2008 Planning Act, which already applies to certain projects in Wales, as a starting point for the proposed regime. This fact will be helpful for developers who are used to that regime’s wider application in England. The Bill also provides clear criteria for the projects that are required to use the regime, and will give developers the ability to be directed into the regime, as per the section 35 regime in the Planning Act.

The Bill seeks to develop the ‘front loaded’ nature of the existing Planning Act regime by requiring statutory consultation to take place and applicants to show how they have taken ‘account’ of the responses in preparing their application. This differs from the ‘have regard’ test in England. Further regulatory detail is to follow, but the Bill notes that specific consultation might be required on compulsory acquisition only after an application is validated. This will be welcomed by developers as reducing the scope and resources required for that pre-application period.

Bringing Planning Act benefits to Wales

The Bill also seeks to bring in three of the key benefits of the Planning Act regime to Wales, but in each case, with a Welsh twist that developers will need to take into account once this regime is fleshed out.

Decision-making certainty

According to the Bill, a decision must be made in accordance with the National Development Framework for Wales, any marine plan and any ‘infrastructure policy statement’ for that type of development issues by the Welsh ministers. Similar to the National Policy Statement regime in England, the development of these policy documents will be a critical piece of this new regime.

One only has to look at the problems that solar farms in Wales have been facing in respect of agricultural land issues to see how this new regime could help provide greater promoter certainty. On the flip side, it should also be noted that the Bill provides that regulations, or alternatively through a later direction, will determine whether it is an appointed examining authority or the Welsh ministers that will determine an application. This might make it harder for applicants to properly budget for the amount of resources that will need to be employed.

Programme certainty

The Bill provides that applications must be decided within 52 weeks of the date of validation of an application, or another period as agreed between the applicant and the Welsh ministers. This will provide helpful certainty to applicants that is offset by:

• the fact that there is no prescribed time period for the decision on whether an application is valid to be made – in contrast with the 28 day period in England;
• the lack of certainty the Bill provides for how the application will be considered within those 52 weeks. The Bill provides that applications must be ‘examined’ but that the appointed examining authority can decide whether that is done through a ‘local’ inquiry, hearing or just by written representations. The rules for how that choice is made and how each of those could be carried out is all to be determined by later regulations; and
• while the Bill provides for appointed examining authorities to report to the Welsh ministers, no timeframes are currently given for when that must happen within the 52-week process.

Stakeholder certainty

As with the existing Planning Act regime, the Bill provides for stakeholders to be ‘brought to the table’ to properly engage with developers. There is also a need for affected local planning authorities to submit ‘local impact reports’, but additionally, in the marine area, Natural Resources Wales will be required to submit ‘marine impact reports’.

Consents

The Bill regime is very similar to the existing Planning Act regime in allowing the new form of consent to modify existing statutes – providing other consenting regimes no longer apply. It will also allow certain consents to be disapplied by the consent if agreed by the relevant statutory body. Further detail on this point is expected at a future date.

In what is likely a reaction to recent case law, the Bill allows for later regulations to be able to define what activities do not constitute ‘material operations’ that enable a development to be able to be considered to have ‘begun’. This could be used by the Welsh ministers as a control to ensure that promoters to do not just ‘bank’ consents without delivering them.