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Major Development & Developments of National Significance Consultation Requirements in Wales (different but not so different)
The Lichfields Cardiff office has guided some of Wales’ biggest development schemes through the consultation and engagement requirements of major planning applications and Developments of National Significance (DNSs)[i]. This Q&A explores the differences and similarities between the two determination regimes. What are DNSs and Major Developments in Wales? ‘Major development’ includes residential development of 10 or more dwellings, or with a site area of at least 0.5 ha. For non-residential development it comprises sites with an area of at least 1 ha, those creating at least 1,000 sq m of floorspace, or waste or mineral development, unless it is classified as a DNS. Applications for major development are determined by the relevant local planning authority (unless they are subject to an appeal process). DNS development includes projects of a specified scale relating to land uses including airports, railways and electricity-generating stations (among others). A full list of DNS project and thresholds is set out in the ‘Specified Criteria’ Regulations[i]. Applications for DNS development are determined by the Welsh Ministers through the Planning Inspectorate (PINS) Wales, with the local authority being a statutory consultee. A DNS development does not have to be ‘major’ to be of ‘national significance’; it is solely dependent on whether the scale of development exceeds the thresholds set out in the Regulations. Client image: Valero/ERM What are the key differences between consultation and engagement for DNS and major development projects? Both are required to undertake a minimum level of consultation prior to submission however there are key differences in the length and nature of that consultation. DNS applicants are required to undertake pre-application consultation for 42 days. For major developments this is 28 days. DNS pre-application consultation must include the publication of a newspaper notice, as well as consultation with other ‘relevant persons’. The exact nature of consultation and publicity will vary depending on the proposal and it is expected that most DNS projects will exceed the minimum requirements. Post-submission publicity for DNS applications is undertaken by PINS Wales rather than the local planning authority. This includes a further newspaper notice, serving notice on adjoining owners or occupiers and a website. For major development applications a local authority would only need to publish a newspaper notice if the development is an EIA project, if it is not in accordance with planning policy or if it would affect a public right of way. DNS applications are determined by the Welsh Ministers though the relevant local authority is required to  submit a Local Impact Report. Community Councils and other interested local planning authorities may submit a Voluntary Local Impact Report. These are similar in nature to the Officer’s Report associated with major planning applications. What are the consultation challenges for DNS projects and major developments and how can these be overcome? Many of the challenges are similar between the two determination routes, albeit they are often amplified for larger scale developments. Below we look at some of the key challenges and how they may be overcome:   Ensuring Compliance: Understanding of the relevant legislative requirements is vital. This is applicable for DNS and major developments, but the complexity of DNS projects means this is particularly important and, if not undertaken correctly, could lead to considerable problems at the determination stage. Make sure that you have a project team that has a proven track record in the relevant consultation process. Timing & Frequency: Whilst DNS and major development consultations have mandatory elements, going above and beyond the statutory requirements can pay dividends. Ironing out as many issues as possible at the pre-application stage will allow the determination process to focus on the key issues; providing certainty to all and speeding up the decision-making process. Early and regular engagement can therefore have big benefits, but it is important that the engagement is meaningful. Misinformation & Proportionality: Due to the scale and complexity of major and DNS applications the risk of misinformation, or small issues becoming a major problem is a risk. The use of social media has increased the speed at which this can happen. Lichfields' Smarter Engagement Five Point Plan highlights the need for a consultation strategy to be shaped by an understanding of the various stakeholder groups relevant to the project. It is important that the team responds to potential issues at the earliest opportunity. Ignoring misinformation could compromise the project in the long run. Managing Volume: the scale of DNS and major development projects makes managing the volume of responses, reviewing and handling them in accordance with the General Data Protection Regulation (GDPR) a significant task in itself. It is vital to have robust and efficient handling procedures in place. Value of face-to face contact: Neither regime makes it mandatory to meet consultees face-to-face however faceless consultation can fuel misinformation and misunderstanding (see above). Invariably there is a solution to a problem through face-to-face contact and explaining the proposed development. What tips would you specifically give to applicants for DNS and/or major development projects? Consultation is key! Think about consultation and engagement early in the process and allow sufficient time in the programme. Specifically for DNS projects, be mindful that the application must be submitted within 1 year of PINS Wales’ acceptance date of the DNS. Understand the relevant Regulations and what is required at each stage to avoid delay and the potential for future legal challenge. Make sure to use the correct consultation and notice forms. For DNS projects these are provided as Schedules within the DNS Procedure Order (NB. PINS Wales can provide these forms in English and Welsh on request). Only undertake mandatory pre-application consultation when you are ready. There is scope to vary the proposed development once the DNS or major development consultation has finished, however if substantial scheme changes are made the process may need to start again. Remember to include any secondary consents in the DNS application scheme/consultation. This includes Listed Building Consent, Conservation Area Consent and Hazardous Substances Consent, among others. Ensure that the consultation is accessible to all – including English and Welsh speakers (N.B. Lichfields can provide in-house translation services if required). Think of the mandatory pre-application consultation website as a tool for disseminating information as well as a consultation portal. This helps to keep everyone updated and encourages communities to become involved in the project. Image credit: Foster + Partners [1] Developments of National Significance, Welsh Government[1] The Developments of National Significance (Specified Criteria and Prescribed Secondary Consents) (Wales) Regulations 2016


Drones, airports and an already constrained airspace: are the latest government proposals enough?
Last week, for the second time in less than a month, flights at a major London airport were halted by drone activity. On 8th January flights out of Heathrow Airport were suspended for over an hour, following drone sightings. Between 19th and 21st December, the runway at Gatwick Airport was closed for nearly 36 hours after drones were reported over the airfield, with flights unable to take-off or land. At Gatwick, as the world’s busiest single-runway airport and on one of its busiest days of the year, there were estimates of 140,000 passengers that were due to use the airport being affected. The media, aviation sector and public have all watched with interest. Malicious use or otherwise, this is clearly a very serious ongoing issue whereby substantial drones have been used to bring about the temporary closure of two major international airports. Questions have been raised: why was it apparently so easy to shut a British airport with a drone, what controls are there to avoid it happening in the future, and can drones actually co-exist with existing operations in our airspace? To add to the drama, the Heathrow Airport drone sighting followed only days after announcements by the Secretary of State for Transport, Chris Grayling, of plans for further drone regulation.  In a previous blog of June last year, I set out the current policy and regulatory framework and explained new laws for drone operators. Announced in May 2018, the new laws came into force in part from July 2018 with the remaining provisions coming into force on 30 November 2019[1]. At the time of announcing the new laws, Government said that these new measures, alongside an upcoming draft Drones Bill, would be the first step in setting the UK on a path to be a global leader in the drones use, tackling misuse to build public confidence in drone technology and encourage positive, innovative drone use in the UK – stating ‘ensuring drones are being used safely will pave the way for the devices to play an increasingly important role in society, and demonstrating that the industry can operate safely will be key to its advancement’. So, what’s next for government to ensure this societal and safety objective – and within the context of these drone incidents? Last summer, Government published a consultation paper ‘Taking flight: the future of drones in the UK’, seeking views on proposed legislation regarding the use of drones. Government also released a Drones and Other Unmanned Aircraft Bill impact assessment. The consultation period ran from July to September 2018 and detailed a number of proposed policies, including: a minimum age requirement for operators for small unmanned aircraft; whether the 1km flight restriction around protected aerodromes is sufficient; proposals to mandate and regulate a Flight Information and Notification System (FINS) as part of future unmanned traffic management and airspace modernisation programme; the powers required by enforcement bodies in order to properly police drone use and penalise incorrect use; and counter drone technology system proposals. The consultation also looked ahead on how counter-drone technology could be used as a means of addressing the potential threat malicious misuse of drones can pose; and the estimated growth in numbers of commercial drones in the UK over future years. On 7th January, Government published its response to this consultation. The response outlined government’s decisions, in particular, to legislate to give the police greater powers to tackle drone misuse, including the power to issue on the spot fines, and to better protect airports by extending the area around airports and runways in which drones are banned. There will be new powers for the police to order an operator to ground a drone if it’s deemed necessary. The police will also be able to seize drone parts, to prove the drone has been used to commit a criminal offence. This all builds on the new laws announced last year. The Heathrow drone sighting occurred the day after this government announcement, reinforcing just how important these new measures are and the need to implement them into legislation as soon as practicably possible. By the end of the week, the Aviation Minister, Baroness Sugg met UK airport bosses to discuss the technology already in use and how airports can strengthen their defences. Government has now said that it is considering implementation of military-grade anti-drone equipment at all major UK airports, as well as other critical infrastructure such as power stations and prisons. However, cost will no doubt be an issue. In the aftermath of the Gatwick drone incident, it was reported that the airport installed a £1million protection system, comprising 360-degree radar and thermal imaging systems, as well as a radio jammer. An airport’s security ‘fence’ will no longer be just the standard 1.8m chain link fence around an airport boundary. While big airports like Gatwick and Heathrow may be able to meet the cost of several million for drone protection, smaller operators will not have that luxury, potentially simply shifting the problem to the places that are less able to deal with it. Are these plans enough? Until now, Government has followed a light touch approach and the only legislation that has so far been passed focuses on regulating the drone user. Will this latest round of proposed regulation, combined with that announced last year, provide sufficient checks and controls to mitigate against another Heathrow/Gatwick drone incident? The Aviation Strategy Green Paper consultation ‘Aviation 2050 — the future of UK aviation consultation’, which commenced in December 2018, and the House of Commons 2nd reading of the Drones (Regulation) Bill 2017-19, which is expected sometime this year, should build on this work to date. As drones continue to play an increasingly important role in our society there will be pressures placed on our airspace and there is a growing need to understand how current users and new users (drones and other unmanned aircraft) can co-exist, and co-exist in an already constrained environment. The potential of drone technology to aid the way we live, work and play is wide-ranging, offering so much more than solely a recreational application. The Heathrow/Gatwick incidents must not prejudice its future. What is certain is that regulation and policy must continue to play catch-up, and then in consultation with industry, anticipate innovations in advancing technologies; safety must continue to be its focus. This includes aerodrome safeguarding and facilitating an airspace that can benefit all. Failure to do so will likely lead to another airport shutdown, or at its worst, a major aviation disaster.   [1] Announced 30 May 2018. In force in part from 30 July 2018 with the remaining from 30 November 2019, in an amendment to the Air Navigation Order 2016 (The Air Navigation (Amendment) Order 2018.