Wales planning news, June 2020

 

The Welsh Government has introduced further legislation and guidance to keep the planning system moving.

Secondary legislation has been introduced to allow:

• statutory pre-application consultation to go ahead;
• development of national significance to proceed; and
• remote attendance at planning committee meetings.

Guidance has been issued clarifying the position with regard to site visits and site notices (see below).

Further details are provided below and reflect the position at the end of May; for the current position please refer to our guide, which is updated as announcements are made.

Data from the Planning Portal shows that planning applications submitted in Wales in March 2020 were 8% lower than in March 2019, and applications submitted in April 2020 were 18% down on April 2019 submissions.

Measures put in place to stem the spread of COVID-19 have had far reaching effects on day to day development management tasks and procedures. Consequently, the Planning Directorate has written to all Heads of Planning in Wales with updated advice and clarification on what the Health Protection (Coronavirus Restrictions)(Wales) Regulations mean for planning services generally but specifically, site visits and publicity.

The update of 29 April says that the erection of site notices can be carried out in accordance with Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020 (the Coronavirus Regulations), but local planning authorities might ask applicants to display the notices on their behalf.

The Welsh Government is encouraging authorities to expand the use of direct letters to neighbours and the use of online services to widen public engagement; essentially the onus is placed on local planning authorities to find solutions where administrative tasks are usually undertaken in an office and attention is drawn to the Government’s Digital Service ‘Notify’ system.

According to the same update, the Welsh Government considers that a site visit is not always necessary; officers can seek further information, such as photographs and videos, from applicants. However, if this is not possible the Welsh Government has confirmed that site visits are a reasonable reason to travel but they must be carried out in strict accordance with the Coronavirus Regulations, including the 2 metre physical distancing rule. This is slight change from a letter issued in March, which said “Other than for applications directly responding to Covid-19, we do not expect officers to make site visits”.

For major planning applications that require pre-application consultation to take place before submission, an amendment order which came into force on 19 May brought in temporary modifications to allow the statutory pre-application consultation to go ahead. For a temporary emergency period, the Planning Applications (Temporary Modifications and Disapplication) (Wales) (Coronavirus) Order 2020 will not require applicants to make information available for inspection locally. Instead, all information must be hosted online. A telephone number must be provided so that those without internet access can contact applicants (or their agents) and hard copies of the application documents can be requested. Requests must be made within the 28 day consultation period; the application cannot be submitted for at least 14 days beginning with the day on which the last document is sent.

Applicants must declare details of any hard copy requests in the pre-application consultation report.  Site notices will still need to be erected, which is possible under Coronavirus Regulations, as explained in a 15 May letter from the Welsh Government to stakeholders and Heads of Planning. The Welsh Government expects applicants to use social media and online services to widen public engagement at present. This emergency period ends on 18 September.

Where an application for a development of national significance (DNS) is submitted online between 19 May 2020 and 18 September 2020, it is unnecessary to send a hard copy of it to the LPA or Welsh Ministers  (Articles 12(5) and 12(6) of the Developments of National Significance (Procedure) (Wales) Order 2016 having been temporarily removed by the Planning Applications (Temporary Modifications and Disapplication) (Wales)(Coronavirus) Order 2020).

Given their public nature, some planning committee meetings in Wales have been cancelled. Provisions of the Local Government Act 1972 mean councillors are unable to vote in committee meetings, unless physically present, which means all non-delegated decisions could not be made.

To overcome this, secondary legislation came into force on 22 April that allows local authority meetings to be held by remote attendance, until 1 May 2021.

The Local Authorities (Coronavirus) (Meetings) (Wales) Regulations 2020 also includes provisions to facilitate public access by electronic means and permits the authority to publish notifications and agendas for such meetings to the public by electronic means only. The provisions require people who are not in the same place to be able to speak to and to be heard by each other but not does require them to see each other. The extent to which authorities decide to use the new regulations to enable planning committee meetings to go ahead is not fully clear. There is significant variation across the 22 local planning authorities and 3 national park authorities. The new regulations will continue to apply to meetings held before 1 May 2021.

We are aware of several Councils in South Wales and the Isle of Anglesey that have extended delegated powers to officers to make planning decisions, albeit that the decision might first be discussed at a remote meeting with some or all planning committee members. Our live tracker provides an overview of the current position, based on our most recent update.

Our blog provides initial thoughts on the emerging picture of planning determinations, validations and receipts in Wales (and south west England, which is obviously under different legislation).

There continues to be significant disruption to the progress of the majority of planning appeals in Wales.

PINS says it is progressing appeals as far as possible, but it has also categorised each LPA into one of three approaches or ‘ways of working’, which was updated on 27 May.  Depending on the LPA to which an appeal relates, once validated the appeal will either:

• Start and continue as normal to the event (i.e. site visits, hearings or inquiry) stage;
• Not start if it is a new appeal, but will to progress to event stage it is a case that has already started; or
• Not start if it is a new appeal, with the submission timetable suspended for cases already started

Following the 29 April update from the Welsh Government (see above), PINS advised that its officers felt able to start organising unaccompanied site visits where appropriate to do so and the health of parties could be protected, in compliance with the Health Protection (Coronavirus Restrictions) (Wales) Regulations 2020. 

No hearings or inquiries are being held or being arranged at present.  The Welsh Government has said it is considering whether changes to legislation to allow electronic attendance are needed. While the Planning Inspectorate says it is “actively exploring how holding digital events may work”. Where possible, PINS has converted cases that were due follow the hearing or inquiry route to written representations.

Minister for Finance Rebecca Evans has made a Written Statement detailing a new £5 million Land Release Fund to help accelerate the development of land owned by the public sector.

The funds are to help bring forward public sector sites where development has previously stalled. The first year of funding will aim to support the delivery of small scale, low carbon developments, in particular proposals which utilise “modern methods of construction, innovative technologies and deliver solutions at pace”.

The Welsh Government has published its response to a recent consultation on proposals to simplify and expand the use of compulsory purchase powers by local authorities. The consultation also sought views on updated guidance on the arrangements for offering back compulsorily purchased land to former owners, their successors, or sitting tenants, known as the Crichel Down rules.

The Welsh Government has stated that is considering making a number of amendments to Part 1 of the Guidance, including further detail as to what constitutes the public interest and clarifying those who should be served notice of the making of a CPO. It will also soon publish a CPO Manual alongside Circular 003/2019, providing further detailed technical guidance and best practice.

It believes converting ‘The Crichel Down Rules’ to statute is unneccessary, as they are “established working principles and advocate best practice”.

Revisions to national policy will be subject to amendments that further strengthen the use of compulsory purchase powers and include reference to the need to demonstrate the “compelling case”.

The Welsh Government will also give further consideration into the need for further legislation to allow local authorities to compulsorily acquire land on behalf of community and town councils.