Wales planning news, December 2022

 

As previously reported by Lichfields here, Technical Advice Note (TAN) 15 “Development, flooding and coastal erosion” aims to inform local development plans and decisions on planning applications in locations which are designated at risk of flooding and coastal erosion. The advice should be used by local planning authorities and developers to direct development away from areas at risk. The implementation of TAN 15 was suspended in November 2021 due to local authorities raising concerns about the new policy advice and flood map and the revisions are now scheduled to come into force on the 1 June 2023 (as discussed, here). The Flood Map for Planning has no official status until it is formally implemented through planning policy in June 2023 although Natural Resources Wales continues to use the map as best available information available to inform its advice. As part of the bi-annual updates, the Flood Map for Planning has been updated and over 40 new Local Flood Models have been outlined for Flood Zones 2 and 3.

  

The Welsh Government has introduced new legislation to tackle the high rates of second home ownership in some parts of the country; it came into force on 20 October 2022. As previously discussed here, the changes to the Town and Country Planning (Use Classes) (Amendment) (Wales) Order 2022 mean local planning authorities (LPAs) will now be able to classify homes as primary residences, second homes, or holiday lets. Planning permission will also be required to convert a house from a primary residence to a second home.  The Town and Country Planning (General Permitted Development) Order 1995 (the GPDO) is also being amended to allow permitted changes between dwellinghouses, used as sole or main residences, ‘dwellinghouses’, used otherwise than as sole or main residences and ‘short-term lets’. These permitted development rights can be overruled by an Article 4 Direction from a local planning authority (LPA) where there is strong local evidence it is needed.

Changes have also been made to Section 4.2 of Planning Policy Wales which outlines that the prevalence of second homes and short-term lets in a local area must be taken into account when considering housing requirements and policy approaches in Local Development Plans. These amendments also outline that where an LPA introduces an Article 4 Direction, it should require conditions to be placed on all new dwellings restricting their use to Class C3 (dwellinghouses) where such a condition would meet the relevant tests. Sites should be allocated in Local Development Plans limited to C3 use in areas where second homes and short-term lets are being managed. The process for implementing Article 4 Directions is also changing. The current requirement to secure the Welsh Ministers’ approval for the introduction of an Article 4 Direction is being removed. LPAs will now have the power to make these decisions. The new Article 4 replaces the former directions known as Article 4(1) and Article 4(2) directions with two types of direction - an expedited direction known as a ‘direction with immediate effect’ and ‘directions without immediate effect’. Other changes include a statutory licencing scheme which will require all accommodation specifically provided for tourists to obtain a licence which is designed to raise the standards of accommodation.

 

The Court of Appeal has ruled Tidal Lagoon (Swansea Bay) plc will require a new development consent order (DCO) to proceed with their project for a 9.5 kilometre-long seawall adjacent to Swansea docks to form a lagoon from which tidal energy would be harnessed. As previously reported here, the High Court ruled in November 2021 that the DCO was not commenced in time. Consent for the tidal lagoon was granted in June 2015 with a period of five years to start work on the project.

One of the main issues in the case was the difference between the words “begin” and “commence”. Tidal Lagoon claimed that demolition and site clearing work had taken place which demonstrates that development had begun within five years of the permission. They claimed that this constituted material operations within section 155 of the Planning Act 2008. Section 155 of the 2008 Act says that development is taken to begin on the earliest date on which any material operation comprised in, or carried out for the purposes of, the development begins to be carried out. Sir Geoffrey Vos, who was sitting with Sir Keith Lindblom and Lord Justice Stuart-Smith, noted that the DCO used "loose language", employing the words "commence" and "begin" interchangeably. He added "The consequences of the construction (of the DCO) proposed by the company would be undesirable. DCOs could be left on the stocks for years, inhibiting future development and placing landowners at potential risk of delayed compulsory purchases."

 

As previously reported here , The Welsh Government laid the Historic Environment (Wales) Bill before the Senedd in July 2022 and the Committee has since concluded the initial consideration of the Bill. The topics discussed include:

• The inclusion of the term ‘ancillary’ to describe structures or objects associated with a listed building to reflect current case law.
   
• Potential issues with the Bill’s provision for recording a listed building consented for demolition.
   
• The reservations expressed by stakeholders about the inclusion of the provisions for preservation notices in the Bill.
  
  
• The Bill’s requirement for the Welsh Ministers to maintain historic environment records.
   

The Committee is now preparing its report on whether the Bill should proceed as a Consolidation Bill. It is expected to submit that report to the Senedd on 23 December. The Senedd will vote on whether the Bill should proceed early in the New Year.

 

The Design Commission for Wales has published a consultation on proposals to update the ‘Designing Wind Farms in Wales’ document, which was last updated in 2014. The document outlines the design objectives and considerations when developing large wind farms and ancillary development in Wales. The new guidance includes solar generation and considers policies 17 and 18 of ‘Future Wales: The National Plan 2040’ which sets out the approach to renewable energy generation across Wales and its relationship with rural areas with a focus on low carbon energy generation from renewable sources. The National Plan 2040 is discussed in detail here. The first draft of the new guidance is expected in the new year and another consultation will be published ahead of publication.

 

The Welsh and UK Governments have published the prospectus for the Freeport Programme in Wales and are encouraging applications for the first freeport in Wales. As discussed here, the UK Government committed to delivering a freeport in Wales as part of the ‘Plan for Wales’. Freeports can be located near airports or coastal regions and have tax benefits designed to stimulate greater economic activity. An agreement between the two governments was reached after the UK Government agreed that both governments would act in a ‘partnership of equals’ and £26 million of non-refundable funding will be provided for any freeport established in Wales. The successful bid will be announced in early spring 2023, and the freeport will be established by summer 2023. The biding process closed on 24 November 2022.

 

The Welsh Government has published a consultation on the draft of revised planning guidance in relation to air quality, noise and soundscape. The consultation is also seeking views on the draft Supporting Document on Soundscape Design. The consultation will run from 21 October 2022 to 20 January 2023.

 

The Rent Homes (Wales) Act 2016 came into force on 1 December 2022. The Act increases the notice period a landlord must give tenants when seeking repossession of their property in instances where the renter is not at fault. A notice period of six months will only apply to occupation contracts that are agreed on or after the date the Act came into force. The Welsh Government has published a consultation which proposes a six-month notice period to existing tenancies that convert to occupation contracts under the Act. This change would take effect six months after the Act comes into force.

 

From the 10 October 2022 the threshold for paying Land Transaction Tax in Wales increased from £180,000 to £225,000. Those purchasing property worth more than £345,000 will pay £550 more. Rebecca Evans, Minister for Finance and Local Government, said ‘This is a change tailored to the unique needs of the housing market in Wales and contributes to our wider vision of a fairer tax system. 61% of homebuyers will not pay tax on their purchase. These changes will get support to people who need it and help with the impact of rising interest rates’.