Wales planning news, November 2020


Wales planning news, November 2020

11 Nov 2020



Headline news


National Strategy for Flood and Coastal Erosion Risk Management (FCERM)

The second National Strategy for Flood and Coastal Erosion Risk Management in Wales has been published by the Welsh Government. Recognising that there will be more frequent and severe floods, rising sea levels and faster rates of coastal erosion as a result of climate change, the strategy sets out how the risks will be managed over the next 10 years. The document is extensive.
The comprehensive document is centred around five objectives, which address improvements to communication, preparedness, prioritising investment, ensuring effective response to events, and a commitment to preventing more people becoming exposed to the risks of flooding and coastal erosion. 
The national strategy reinforces the Welsh Government’s policy of directing development away from areas of high risk of flooding and notes that TAN15 will be updated ‘by 2021’. Planning policy will continue to ensure that vulnerable development, such as new homes, cannot be developed in higher-risk zones. The strategy states that clearer, more robust policy advice will be set out. However, the strategy also recognises that there may be the need to allow some development in flood plains given the history that some towns and cities have grown around rivers and coasts. The Flood Risk Assessment Wales Map has also been published, although the flood map for planning, which will replace the Development Advice Maps, will not be published until next year.
In terms of coastal erosion, the strategy explains that there are already four Shoreline Management Plans (SMP) that cover Wales’ coastline. It highlights that the preferred management policies within them should influence and inform the preparation of Strategic and Local Development Plans and their coastal policies, with particular attention to areas where coastal defences will no longer be maintained or the managed realignment of the coastline is necessary. NRW will ensure the National Coastal Erosion Risk Map matches SMP policies by 2021 and will show erosion rates on the Wales Flood Map by the end of 2022.

Welsh Government announcement National Strategy for Flood and Coastal Erosion Risk ManagementFlood Risk Assessment Wales Map



Quote of the month


I witnessed first-hand the devastating impacts of the floods that affected over 3,000 homes and business across the country. As the likelihood of these extreme weather events rise, we need to strengthen our approach to managing flood and coastal risk and adapt to help keep people safe.

This has strengthened my resolve to reinforce our commitments on flood prevention, resilience and climate adaptation. I want Wales to lead the way with this work and this is reflected in our new National Strategy.

Lesley Griffiths, the Minister for Environment, Energy and Rural Affairs


Planning permission significantly amended over many years cannot be relied on

The Court of Appeal has concluded that a 1967 full planning permission can no longer be relied upon, because so many departures had been made from the original approved masterplan.
Hillside Parks Limited owns a site that was granted planning permission for a 401 unit residential scheme in 1967, subject to a masterplan and one condition relating to the water supply.
The permission was implemented and over many years the master plan was varied several times by subsequent planning permissions. In 1987 the High Court found that the 1967 permission had been lawfully implemented and could still be relied upon.
Further variations were made after the 1987 judgement. In 2017, Snowdonia National Park Authority (SNPA), as local planning authority since 1995, advised that it was no longer possible to build out development in accordance with the 1967 permission due to changes that had taken place over time; it could no longer be relied upon.
Hillside Parks Limited’s claim that this decision by SNPA was unlawful was dismissed in the High Court in 2019. The Court of Appeal has now dismissed the appeal against the High Court judgement.
Lord Justice Singh accepted the argument put by Counsel for SNPA that legal decisions since the 1987 judgement, particularly Sage v Secretary of State for the Environment [2003]:
“[…] has placed greater emphasis on the need for a planning permission to be construed as a whole. It has now become clearer than it was before 2003 that a planning permission needs to be implemented in full. A “holistic approach” is required”.” (para 65).
The LJ Singh endorsed the judge’s approach to Sage in Singh v Secretary of State for Communities and Local Government and Another [2010] (para 67):
“[…] Hickinbottom J was of the view that, reflecting the holistic structure of the planning regime, for a development to be lawful it must be carried out “fully in accordance with any final permission under which it is done” (emphasis in original). He continued:
“That means that if a development for which permission has been granted cannot be completed because of the impact of other operations under another permission, that subsequent development as a whole will be unlawful”.”
The Court did not consider whether this meant the whole development or only works undertaken after the impact of permissions, would be unlawful.
According to the judgement, the Court of Appeal judges were presented with plans to assist with understanding what had been permitted on the site. Lord Justice Singh said:
“it has to be noted that these plans will not be on the public register. […] it is important that the public, including potential purchasers of land and neighbours who may be affected by development, should be able to ascertain with reasonable certainty what is or is not permitted development by reference to what is available on a public register […].” (para 71).
Furthermore, LJ Singh found that while Hillside Park Limited might not be wrong to say that some of the units shown on the 1967 plan could still be implemented:
“[…] it does tend to show, in my view, is that the [High Court] Judge was entitled, having all the evidence before him, to reach the conclusion that events since 1987 have made it impossible now for the original planning permission of 1967 to be implemented” (para 72).
The Court of Appeal also concluded that SNPA’s change in approach to the position taken on whether or not the master plan could continue to be relied upon and built out, between it coming into existence and 2017, was not an abuse of process.
In conclusion, LJ Singh cited Hickinbottom J in Singh v Secretary of State for Communities and Local Government and Another [2010] EWHC 1621 (Admin) and found:
[…] it is conceivable that, on its proper construction, a particular planning permission does indeed grant permission for the development to take place in a series of independent acts, each of which is separately permitted by it. I would merely add that, in my respectful view, that is unlikely to be the correct construction of a typical modern planning permission for the development of a large estate such as a housing estate. Typically there would be not only many different residential units to be constructed in accordance with that scheme, there may well be other requirements concerning highways, landscaping, possibly even employment or educational uses, which are all stipulated as being an integral part of the overall scheme which is being permitted. I doubt very much in those circumstances whether a developer could lawfully “pick and choose” different parts of the development to be implemented” (para 90).
The express reference to modern planning permissions and the need to approach them holistically raises the question of how this judgement sits with drop-in planning permissions, where a phase of development already granted planning permission is swapped-out for development approved by a later permission for that phase, without compromising the remaining elements of the planning permission granted. The swapped-out phase is often severed from the original permission by new conditions and/or a legal agreement.
Planning lawyer Simon Ricketts, of Town Legal LLP, considers the potentially complex legal implications of this case in his blog Multiple planning permissions, antique planning permissions: Hillside

Hillside Parks Ltd v Snowdonia National Park Authority (2020)

Further Planning (Wales) Act 2015 provisions brought into force

The Planning (Wales) Act 2015 (Commencement No. 6) Order has brought forward several provisions that will come into force on 4 December 2020. These provisions include:
  • Preparing and revising the National Development Framework for Wales (section 3)
  • Conformity of certain plans and schemes with National Development Framework and strategic development plan (section 7)
  • Duty to consider whether to review local development plan (section 8)
  • National Development Framework and strategic development plan to form part of development plan (section 9)
  • Land affected by National Development Framework or strategic development plan (section 10)

Legislation, The Planning (Wales) Act 2015 (Commencement No. 6) Order 2020

Law Commission’s Report on Planning Law in Wales: Detailed Response by the Welsh Government

On 10 November 2020, Julie James MS, Minister for Housing and Local Government, published the Welsh Government’s detailed response to the Law Commission’s Report on Planning Law in Wales. Ms James states:
“Having carefully considered the recommendations, I have accepted the majority of them. I believe they will result in improvements to address the accessibility and complexity of the current legislative framework underpinning the planning system, and the resulting difficulties that can frustrate the system for all stakeholders”.
With 86% of the 192 recommendations having been accepted in full or in principle, it is anticipated that the majority of the changes will be made through a Planning Consolidation Bill. This work has already commenced, although the work will continue beyond this Senedd term. The ability to carry out all the supported recommendations may be restricted by the extent of legislative competence by Senedd Cyrmu with the Standing Orders for Consolidation Bills currently progressing through the Business Committee.
This detailed response comes 18 months after the Welsh Government provided an interim response on Part 1 of the Report which covered the need to simplify and consolidate planning law, the case for a planning code; and, the scope of the initial consolidation exercise.

Welsh Government, Detailed response to the Law Commission report on planning law in Wales

Compulsory Purchase in Wales and ‘The Crichel Down Rules’

On 13 October 2020, the Welsh Government has published an update to Circular 003/2019 which now includes The Crichel Down Rules (Wales Version 2020).  The extensive guidance sets out details on the making of compulsory purchase orders (CPOs) in cases when the Acquisition of Land Act 1981 applies. The circular seeks to ensure that CPOs are processed correctly and in line with the statutory requirements. The National Assembly for Wales Circular (NAFWC) 14/2004: Revised Circular on Compulsory Purchase Orders is cancelled.
The update is separated into six main parts. Part one applies to CPOs which are to be confirmed by Welsh Ministers. It also applies to orders which are to be confirmed by the UK Government’s Secretary of State in conjunction with the Welsh Ministers relating to flood defence or land drainage works covering both land in Wales and England.  Parts two and three of the update provide detailed guidance on procedural issues and it is recommended within the guidance that they are followed as strictly as possible to facilitate a smooth process which will avoid the incursion of delays brought about by the need to clarify details after CPO submission. Part four focuses on procedural and drafting issues and includes a checklist of documents to be submitted to the Welsh Ministers when submitting a CPO. Part five of the guidance provides a chart which outlines the process for compulsory purchase for non-ministerial decisions where there are no objections received. Part six of the Circular sets out ‘The Crichel Down Rules’ where the Welsh Ministers are using statutory powers permitted by the Government of Wales Act 1998. These rules set out the procedures whereby surplus government land which was acquired by compulsion should be offered back to the land’s former owners, their successors or the sitting tenants. The rules are mandatory for Welsh Minsters and other public bodies which are subject to a power of direction by Welsh Minsters. The guidance notes that these 2020 rules supersede the 1992 Crichel Down rules save where confirmation by the UK Secretary of State is needed.
The new guidance has been released on the back of a Welsh Government led consultation on proposals for the use of compulsory purchase powers and associated guidance.  Julie James MS, Minister for Housing and Local Government said “I am committed to removing barriers to the use of compulsory purchase powers and improving the compulsory purchase process to make it fairer, more efficient and intelligible. This is essential to supporting local authorities and communities recover from the impacts of Covid-19 and respond to the identified key issues for policy action”. Revisions to paragraph 3.53 of Planning Policy Wales under the ‘Strategic Placemaking’ section have been made.
The Welsh Government is currently preparing CPO Manual which will contain detailed, technical step by-step guidance and best practice on navigating and managing the CPO process. This is due to be published later this year.
In the meantime, a new consultation has also been announced on reforms to compulsory purchase powers and procedures. The consultation will seek views on reforms to modernise primary and secondary legislation to modernise the compulsory purchase process. The Consultation closes on 19 January 2021.


The Lichfields perspective

There is no doubt that flooding and coastal erosion can have devastating impacts upon people, their homes and their businesses. The Welsh Government has set out clear priorities which will drive the delivery of the actions identified within the new strategy. The recognition of the need to support the appropriate growth of towns and cities that have grown around rivers and coasts in planning policy is welcomed; we await revisions to TAN15 for the detail.
Helen Ashby-Ridgway, Associate Director


Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116