Devolution inevitably drives a separation of legal powers. Of course you cannot mention devolution without referencing the first referendum in September 1997 (successful by 0.3%) and the Government of Wales Acts of 1998 and 2006. Moving ahead a few years, Carwyn Jones consulted on setting up a separate legal system in Wales in 2011/12 but it didn't get much traction. After a decade of significant change and a tangible body of law now in place it is clear that the legal split is well on its way to becoming a reality.
The Welsh Assembly (now the Senedd) was given primary legislative making powers in 2011, after a further referendum. It pushed the boundaries when it created its first piece of primary legislation back in 2012 with the passing of the National Assembly for Wales (Official Languages) Act 2012 (anaw 1); the first piece of Welsh legislation in over 600 hundred years. After the 2015 St David’s Day agreement the UK Government agreed to devolve more power which led to Wales seeing a shift from the conferred model to the reserved model (like in Scotland), supported by the Silk Commission recommendations and implemented through the Wales Act 2017.
Despite “anaw 1”, there have been three Supreme Court references made by the UK Government to date (four really, but one was withdrawn) relating to Welsh legislative competence. The Welsh Government was broadly successful in demonstrating it had the power to legislate on the referred matters and buoyed by this it was keen to progress an ambitious programme of change. Most significantly this led to the introduction of a raft of legislation in 2015/16 – the Planning (Wales) Act 2015, Historic Environment (Wales) Act 2016, Environment (Wales) Act 2015 and of course the Well-being of Future Generations (Wales) Act 2015. These cornerstones have set the framework for the Welsh Government’s vision and the planning regime plays a significant part to deliver this.
With those Acts firmly in place and fleshed out by secondary legislation, the Welsh Government is now pushing a further legislative programme of reform. Before the Summer we’re expecting to see two big changes. One is an incredibly challenging task and that is creating an entirely separate planning code for Wales through a new Planning Act. This involves a wholesale consolidation of all planning law and linked legislation as it applies to Wales.
The second relates to developing infrastructure in Wales. The Developments of National Significance (DNS) regime in Wales was introduced by the Planning (Wales) Act 2015. It amends the Town and Country Planning Act 1990 as it applies to Wales. A new Infrastructure Consenting Bill will set out a new vision for developing infrastructure in Wales which is looking to take the best bits from the DNS regime and from the Planning Act 2008 regime (which controls the development of Nationally Significant Infrastructure Projects (NSIPs)).
The new regime could be two tiered. For more complex projects there could be the need to apply to the Welsh Government for a statutory development order (like with NSIPs). This is likely to push the “one stop shop” concept and allow other consents to be included in the order. This will include compulsory acquisition powers (which are devolved, albeit the compensation code is not). Below that there could be a ‘lighter’ process for less complex proposals that do not need additional powers, are smaller scale or engage fewer issues. This is all early stages and the legislation will be a framework to be supported by secondary legislation, none of which is drafted yet. We could be some years off seeing the regime in practice. It is also expected that there will be transitional arrangements in place for existing DNS projects depending on what stage they are at in the process.
Developers want certainty above all else. The DNS regime has been in place since 2016 but it has found its feet over the past 2/3 years. There is more familiarity with it from a developer/public perspective and there is a significant pipeline of new projects coming through. To date we’ve had 19 DNS decisions (13 consented, 6 refused). From a practical perspective it is working.
More upheaval and the prospect of transitional arrangements is unlikely to be welcomed. However, if the new regime can guarantee certainty – like the NSIP regime has historically done (perhaps less so in more recent years) – that will be a key driver for industry support. That’s especially so as even though the DNS process is working, no project to date has kept to the statutory determination timescales.
A separate Act to consolidate and create a new legislative planning code has to be welcomed. The legislation as it applies to Wales is frankly unclear and cumbersome. It is unfair from a public access perspective to let this continue for much longer and it is good to see the Welsh Government putting so much effort into resolving this issue. On a macro level it is clear that we have a separate legal system in Wales and codification just makes that fact even more stark.
For more information, please contact Stephen Humphreys.
