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Have your say on planning law

The Law Commission is consulting on the future of Welsh planning law. Nicholas Paines sets out the thinking.

Planning law is unnecessarily complicated and, in places, extremely difficult to understand. Contained in over 30 Acts of Parliament, its complexity slows down the development process, confuses applicants for planning permission, and generates unnecessary bureaucracy at every turn.

But that is no surprise given how it has developed. It’s been over 70 years since the Town and Country Planning Act 1947, the landmark legislation that set out how and where developments could happen. And it’s more than a quarter of a century since it and subsequent legislation were pulled together in 1990.

Since then more and more piecemeal legislation has been brought in by successive governments to deal with the needs of the day. There are now around 30 Acts applying to planning in Wales (and a further eight applying in England only).

The profusion of pieces of legislation makes navigating the law complex. So much so that even experienced professionals struggle to find a way through the jungle of Acts, rules and regulations.  This leads to delay, mistakes and frustration.

The increasing divergence between the law in England and Wales has also added a further complication. It can even be a problem finding out what the law in Wales actually is.

At the Law Commission of England and Wales, it’s our job to keep the law under review, and to make recommendations for reform where needed. Set up in 1965 by Act of Parliament, over the past half century more than two-thirds of our recommendations have been accepted or implemented in whole or in part.

In Wales, devolution provides an unrivalled opportunity to get laws right from the word go. We’ve already made recommendations to improve the form and accessibility of the law in Wales. These have been accepted by the Welsh Government and will help the Assembly to codify many areas of complex legislation. As part of our 12th Programme of Law Reform, the Welsh Government asked us to start work on the jungle that is planning law.

The Welsh Government is proposing to introduce into the Assembly a Planning Act, to help bring absolute clarity – for developers, public authorities and all involved in the planning process – as to what the planning rules actually are. This will bring together the 30 different Acts into one, eliminating the parts that only apply in England.

And alongside that exercise the Law Commission is looking at possible technical reforms, to create a planning system that is fit for purpose for the next 70 years.

We are not looking at planning policy. That is for politicians to determine. But as an independent law reform body, we can help make sure that any planning decision is built on secure legal foundations. So, after producing a scoping paper in June 2016, we have now launched a public consultation outlining a wide range of proposals. We want to know what you think of them.

We are proposing that there are fewer types of planning applications. Key terms like ‘dwelling’ and ‘curtilage’ – and the details as to permission is required – will be more clearly defined, which will make the law governing residential development more logical. The policy basis for decision-making will be more clearly set out. And the procedure for dealing with small changes to applications and permissions will be clarified.

We also think that overlapping controls are confusing for all involved. At present, in many cases, multiple applications must be submitted to the same authority for different approvals – planning permission, listed building consent and conservation area consent. This means multiple committee reports, multiple decisions, and, potentially, multiple appeals. So we are suggesting bringing together these together, to create a single application process. But listed buildings will still be marked out as special, as works to their interiors will still need permission; and any unauthorised works will still be a criminal offence.

As a result of our proposals, planning authorities, developers and individual homeowners will be able to navigate the process of obtaining planning permission much more easily. Many of the proposed reforms are technical in nature, but we hope will have a positive impact on practice.

But this should not be done at the risk to the county’s heritage or its unique environment. So, we are also making recommendations for improvements to the legislation on tree preservation orders and advertising.

And we are proposing to repeal obsolete legislation, unused for many years – including those for urban development corporations, new towns, simplified planning zones, planning inquiry commissions and archaeological areas.

The consultation is open until March 1 – see www.lawcom.gov.uk/planning-law-in-wales. We value the views of all those with an interest in this.

Once the consultation closes we will then analyse the responses and reconsider our proposals in the light of them. We will then make final recommendations to the Welsh Government. This will help inform the plans for a new Planning Bill, expected to obtain Royal Assent in 2020.

It’s clear we need to build more homes in Wales, and the existing law is not helping. With your help, it can.

Nicholas Paines QC is a Law Commssioner

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