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Planning matters

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Unveiling Wales' Biodiversity Policy: Decoding the Changes Ahead
For anyone who has seen the recent Wild Isles series with David Attenborough you will know that there has never been a more critical time than to safeguard our wildlife and their habitats for both their own protection and for our benefit. In October 2022, Welsh Government (WG) published recommendations from a Biodiversity Deep Dive. These set out collective actions to support the delivery of the COP15 ’30 by 30’ goal[1]. A series of recommendations for the planning system were identified. A consultation is now taking place on changes to Planning Policy Wales to embed a greater priority to the protection and enhancement of biodiversity and ecological resilience. Some of the proposed changes result in extensive tinkering with existing wording but there is also significant new text, which if taken forward, will introduce new requirements for applicants and local authorities. Summary of key proposed changes Net Benefit for Biodiversity - principles 1. WG says it recognises that development needs to take place and as such some biodiversity may be impacted. In all cases, a net benefit for biodiversity (NBB) will be required. The concept of securing a NBB[2] is not new for PPW but there is greater reference and commitment to its delivery. The need to balance the enhancement of biodiversity and ecosystem resilience with wider economic and social needs of business and communities is retained. 2. NBB is defined as that which is over and above what is required to mitigate or compensate any negative impacts. Significant weight will be given to its absence and permission will be refused unless other significant material considerations indicate otherwise, the draft wording states. 3. There is a change in emphasis, from solely supporting the conservation of biodiversity, to the maintenance and enhancement of biodiversity and the resilience of ecosystems to adapt to climate change and other pressures such as pollution, invasive species, and over exploitation. There is a shift from protecting priority species from just direct impacts, to protecting species of principal importance from direct, indirect and cumulative impacts. 4. A legally required metric (as per England) is not being brought in at this stage as WG sees the drawbacks to this approach given the difficulties in applying it to a complex system. However, WG will work with NRW to develop a common approach measuring the benefit… so this might change. 5. NBB must be achieved within as short a timeframe as possible and management must be secured in accordance with an agreed management plan for the long-term. 6. Reemphasis of the DECCA Framework for evaluating ecosystem resilience, taken from the Environment (Wales) Act i.e. Diversity, Extent, Condition, Connectivity and other aspects to adapt to, resist and recover from pressures. 7. Where pre-emptive site clearance has taken place, there will be the need to deliver NBB over any pre-existing baseline status. Habitat status will be assumed to be good in the absence of any evidence to the contrary. 8. Irreplaceable habitats and sites containing protected species must be safeguarded. Development in a designated site which is not necessary for the management of the site must be avoided. 9. For SSSIs, where local planning authorities are minded to grant planning permission against the advice of NRW they will need to notify the Welsh Ministers. Green infrastructure statements and standards 10. Planning authorities will need to develop multi-functional, coherent and spatial frameworks of green infrastructure to improve the overall well-being and health of communities and the environment. The consultation includes a proposed list of minimum requirements for the outputs. 11. Green infrastructure statements, incorporated into design and access statements, will be required to accompany planning applications to demonstrate multifunctional outcomes. There is a greater focus on being able to demonstrate how decisions on design, siting, scale, density etc have been informed by biodiversity and ecosystem resilience. Development proposals should address well-being priorities and the nature and climate emergencies. 12. In the absence of an adopted LPA approach, the Building with Nature Standards should be applied as a checklist in a way that is proportionate to the type and scale of the development proposed. Welsh Government is urging accreditation under the standards albeit will not require them. The step-wise approach to addressing impact 13. Greater detail on the step-wise approach to addressing impact: Avoid: The first principle will always be to retain and enhance existing habitats and species. There will be the need to demonstrate that reasonable alternatives which would result in less harm, no harm or benefit have been considered and cannot be achieved. Minimise: When locational and siting options have been exhausted, there will be a requirement to minimise the impacts by maintaining the largest possible area of habitat, retaining existing features and using innovative solutions to minimise damage and maintain features and ecosystems. Mitigate: Residual losses should mitigate any damage, and planning conditions, obligations or advisory notes will be used to secure outcomes. Mitigation measures should be like for like in the case of priority habitats and species. Compensate: As a last resort, compensation must be provided, usually in the form of habitat restoration or creation or long-term management arrangements. Having mitigated or compensated for losses, enhancement must then be secured. Allocated sites and Local Development Plans 14. Where sites are already allocated in an adopted development plan and the plan is reviewed, allocations will be considered afresh against the step-wise policy and in light of the present biodiversity condition and role they may play in enhancing ecosystem resilience. In some circumstances WG suggests it may be necessary to de-allocate sites. 15. Where local authorities have not mapped non-statutory designations on a proposals or constraints map, the development plans should include a criterion-based policy to provide for sites that meet the qualifying criteria for non-statutory designation. Those sites will carry equal weight to mapped sites. Peat 16. Considerable weight should be given to the protection of peat soils and where peat is identified within proposed developments, permission will be refused unless there are other significant material considerations. Trees, hedgerows and woodlands 17. Planning authorities must protect trees, hedgerows, groups of trees and areas of woodland where they have ecological value, contribute to the character or amenity of a particular locality or perform a beneficial green infrastructure function (the reference to identified green infrastructure function has been removed). 18. Planning authorities should adopt time sensitive minimum tree canopy cover targets for their authority areas. 19. Permanent removal of trees, woodland and hedgerows will only be permitted where it would achieve significant and clearly defined public benefits. Where individual or groups of trees are removed, compensatory planting must be provided onsite and at a minimum ratio of at least 3 trees of similar type to every 1 lost. Where a woodland or shelterbelt area is lost, compensation planting must be at a rate of at least 1600 trees per hectare for broadleaves, and 2500 trees per hectare for conifers. 20. The loss or deterioration of ancient woodland, semi-natural woodland and individual ancient, veteran and heritage trees would only be allowed in very exceptional circumstances with significant and required public benefits that can be clearly defined. Thoughts The Welsh Government’s focus on delivering net benefits for biodiversity seems timely and in line with wider environmental objectives. Neither the context nor the step-wise approach is new to PPW nor the industry. However, having it embedded in national policy in the way that is proposed will strengthen the focus that will be needed for decision-making at application and plan stage and there are new limits and requirements that are being introduced. Designing schemes with ecology in mind from the outset will sit alongside other factors such as drainage and in most cases for larger schemes is already par for the course when preparing well-thought out projects, But WG should be mindful not to require burdensome documents across multiple regulatory systems. Not introducing minimum benefit percentages and a detailed metric at this stage is probably going to be welcomed across the industry. There is some reference to the need to be proportional – albeit, this could be emphasised further for both information collecting, justification of scheme and enhancement proposals. The big difference for applicants will be the need to better explain how the integration of biodiversity and ecological resilience has been achieved in the proposals and how the DECCA principles have been met. Reference to external standards, such as the Building for Nature, has caused problems in this past (think Code for Sustainable Homes) and therefore a pragmatic approach to the use of the checklist should be sought by local authorities. There are some elements that may prove more difficult for landowners and developers, such as the approach to re-allocation of sites in reviewed plans, the need to compensate 3:1 tree losses on site and there being little mention of local authority mechanisms to help with compensation delivery. There is also a bigger question around resourcing: Do local authorities have sufficient resource and expertise to cope with the changes coming through? Setting aside that WG might have been better putting a lot of the detail into a revised TAN5 to keep PPW punchy, the direction of policy is clear and it’s important that responses are made to the consultation in order to ensure that the practical side of applying the requirements are reasonable, effective and justified. If you would like us to consider how the proposed changes might affect your proposals or portfolios, please contact us. We can help make suitable representations to the consultation. The consultation ends on 31 May 2023.   [1] By 2030: Protect 30% of Earth’s land, oceans, coastal areas, inland waters. [2] The concept that development should leave biodiversity and ecosystems in a better state than before, through securing long term, measurable and demonstrable benefit, primarily on site.  

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Wrexham’s football team is on the way up but is their Local Development Plan on the way down?
In April 2023, Wrexham AFC concluded its Hollywood fairy-tale, returning to the football league after a 15-year absence, following the takeover of the club in 2020 by actors Ryan Reynolds and Rob McElhenny.  The takeover of the football club has installed a new sense of optimism in the city, with the owners promising to commit funding to the club, expand the stadium and regenerate the local area. This success has been the subject of nationwide discussion and has put Wrexham firmly on the sporting map. April was not only a significant month for Wrexham in terms of sport. Another local event has also been the subject of widespread debate and has put the city on the planning map. On 19 April, Wrexham Councillors voted 27 to 23 against adopting the Wrexham Local Development Plan 2013-2028 [LDP].  The vote was despite a protracted examination and the Inspectors finding the LDP to meet the test of soundness. The reasons for this decision were wide ranging and included the following: The view that the LDP represented a “developer rather than community led” plan that had been “imposed on the people of Wrexham”; The proposed scale of development and projected population was too high; As a consequence, it would result in urban sprawl and the loss of green fields; The LDP fails to address the need for genuine affordable housing; Current infrastructure is inadequate for development and the proposed level of growth would place an unacceptable level of pressure on local infrastructure and services; and, Issues over the selection of ‘Gypsy and Traveller’ sites (due to physical and contamination constraints on these sites). Whilst the Inspectors made comments on these matters, they did not require the LDP to be amended substantially in respect of any of these points. As such, the Councillors essentially voted not to adopt the Plan that they had supported prior to submission. In so doing, they have created an unprecedented situation, becoming the first authority in Wales to refuse to adopt a plan after it has been found to be sound, despite a statutory duty to do so. The wider context to this makes the situation even more serious. Wrexham is the only local authority in Wales that has never adopted a Planning Policy Wales compliant LDP.  Its Unitary Development Plan [UDP], which was adopted in 2005, covered the period to 2011 but no replacement Plan has been adopted to provide statutory development plan coverage beyond that time. Despite being submitted to the Welsh Government back in April 2019, the LDP Examination process had been stalled by uncertainty relating to the ongoing phosphates issues in Wrexham[1].  As a result of the delays, the Plan would only cover a remaining period of five years to 2028 and it was intended that work on a new plan would begin immediately following adoption of the LDP. The decision not to adopt the LDP threatens to extend the period of time in which Wrexham lacks an up-to-date development plan and delay work on the preparation of a replacement plan to cover the period beyond 2028. The significance of this should not be underestimated. The Welsh Government places great emphasis on the plan-led system, noting that: “Up to date agile development plans are the cornerstone of our planning system” (letter from Julie James AM to local authority leaders and chief executives, 7 July 2020); “Up to date LDPs are needed urgently to give effect to local development priorities and national planning policy” (Building Better Places); and, Plans make “a real difference on the ground, achieving practical and positive improvements for local communities and businesses” (LDP Manual paragraph 1.2). Against this context, a local authority that fails to bring forward a new LDP – particularly once it has been found sound following examination – is likely to be viewed with concern by the Welsh Government. The key question that emerges is what happens next. Wrexham is undoubtedly in unchartered territory and there are many unknowns. However, the following is clear: As set out above, local authorities have a statutory duty to adopt their LDPs. The Welsh Government has wide ranging powers in respect of the LDP process and will be keen to avoid Wrexham setting a precedent that other councils might seek to follow as this goes against the grain of the plan-led system and could undermine the clearly stated objectives of the Government. Whilst the legislative powers set out in the Planning and Compulsory Purchase Act 2004 do not explicitly include giving the Welsh Government power to direct an authority to adopt a plan, Part 6 section 71 gives the Welsh Government “step-in” powers where an authority is failing to take necessary steps whilst section 65(1) gives Ministers powers to direct an authority to modify its plan in a specified manner prior to adoption. These could presumably be used to require Wrexham Council to amend its draft LDP in accordance with the Inspectors’ Report and then progress towards adoption. In any event, non-adoption of the LDP will not make it disappear. The conclusions and recommendations of the Inspectors will have significant weight and Wrexham Council may struggle to resist planning applications for development on proposed allocation sites. Delays in the preparation of the LDP have resulted in housing delivery being suppressed whilst the continued lack of an up-to-date plan means that it does not have an effective trajectory against which to monitor the delivery of new housing. Going forwards, this might increase pressure for “speculative” planning applications relating to the development of unallocated sites (including those that were not proposed for allocation in the draft LDP). The Council might struggle to defend itself at appeal against such proposals. All eyes are now on the Welsh Government to see how it responds. A decision not to intervene could set a dangerous precedent for other authorities across Wales to refuse to adopt LDPs that have been found to be sound. The effect of this might be to stall development, economic growth and housing delivery across the country. At a time when Wrexham is riding high in the football world, the opposite has happened in respect to planning. If the 27 members that voted not to adopt the Wrexham LDP think that this is the end of the matter, they are likely to be very disappointed. Up-to-date LDPs allocate land for housing and employment, leading to the creation of jobs and providing modern homes that meet people’s need.  Ryan Reynolds and Rob McElhenny have helped to put Wrexham back on the map and the Council must adopt an ambitious and up-to-date LDP if the City is to grow in line with the ambitions of the football club.   [1] The effect of new phosphate targets on housing delivery in Wales (lichfields.uk).

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