Helping you understand Welsh law

What is devolved?

Schedule 7A to the Government of Wales Act 2006  sets out the matters on which only the UK Parliament can legislate.  Legislation which relates to any matter not reserved by Schedule 7A is devolved to the National Assembly for Wales.

The principal reservations set out in Schedule 7A which relate to planning are :-

  • the subject matter of Parts 2 to 8 of the Planning Act 2008 in relation to certain classes of development, certain overhead lines and railway lines;
  • compensation for the compulsory purchase of land; and
  • regulation of the design and construction of buildings in relation to works by the Crown and statutory undertakers.

 

Section 1

Core primary legislation relating to planning law in Wales

The core of the primary legislation relating to planning law in Wales is found in the following Acts of the UK Parliament:

Town and Country Planning Act 1990 (TCPA 1990)

Since 1 July 1948, generally, planning permission has been required for development and material changes in the use of land. TCPA 1990 is the third consolidation of legislation related to planning permission since that date.

TCPA 1990 makes provision, amongst other things, for local planning authorities; development management including appeals and 'call-in' of applications made to local planning authorities for determination by the Welsh Ministers; enforcement; special controls such as in relation to trees and the display of advertisements; the acquisition of land for planning purposes; and in relation to highways.

Planning (Listed Buildings and Conservation Areas) Act 1990

The Planning (Listed Buildings and Conservation Areas) Act 1990 consolidated provisions in the Town and Country Planning Act 1971 relating to listed buildings and conservation areas and provides a self-contained code for the protection of architectural heritage. It ties in closely with TCPA 1990 and replicates several of its provisions as they apply to listed buildings.

Part 1 deals with the process of listing buildings; obtaining listed building consent; rights of owners to compensation and to serve purchase notices; enforcement of listed building control and prevention of deterioration and damage to listed buildings.

The legislation makes it an offence to “execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised”. Authorisation of works is ‘listed building consent’.

Part 2 relates to conservation areas, including their designation and effect, and control of demolition and development within those areas.

There are provisions for applications, appeals and call-in, comparable to those in TCPA 1990.

Planning (Hazardous Substances) Act 1990

The Planning (Hazardous Substances) Act 1990 provides that the presence in, over or under land of any hazardous substance in excess of controlled quantities requires consent from the relevant hazardous substances authority.  This separate regime for the control of hazardous substances is modelled on planning procedures set out in TCPA 1990 and is administered by local planning authorities.

There are provisions for applications, appeals and call-in, comparable to those in TCPA 1990.

Planning and Compulsory Purchase Act 2004

The Planning and Compulsory Purchase Act 2004 broke new ground by including a Part that relates to Wales only. Part 6 provides for the Wales Spatial Plan and local development plans and is the basis for what is described as the plan-led system in Wales.  It is not fully in force in relation to Wales.

Planning Act 2008

The Planning Act 2008 Act largely concerns development consents for nationally significant infrastructure projects and has more limited application in Wales compared with England. It also makes provision for the community infrastructure levy which is applicable in England and Wales. Functions in relation to the community infrastructure levy are exercisable by the Secretary of State.

The Welsh Ministers have power to make provision in relation to Wales equivalent to various England-only provisions. This is exercisable by order.

Planning (Wales) Act 2015

The Planning (Wales) Act 2015 strengthens the ‘plan- led’ approach to planning in Wales.

Part 3 amends the Planning and Compulsory Purchase Act 2004 to require the Welsh Ministers to prepare a National Development Framework for Wales. It makes provisions relating to strategic planning areas and strategic planning panels and imposes a requirement on strategic planning panels to prepare Strategic Development Plans. The National Development Framework replaces the Wales Spatial Plan. 

Part 4 amends TCPA 1990 to introduce a pre- application consultation process for certain types of application and allows the Welsh Ministers to make regulations requiring local planning authorities to provide pre- application services.

Part 5  amends the TCPA 1990 to introduce a requirement for applications for Developments of National Significance (DNS) to be made directly to the Welsh Ministers instead of the local planning authority and allows the Welsh Ministers to make decisions on secondary consents that are connected to an application for DNS instead of the person who would otherwise make that decision.

Part 6 amends the TCPA 1990 to provide a power for local planning authorities to require the submission of a retrospective planning application. Local planning authorities are given the power to serve an enforcement notice and to refuse to determine a retrospective planning application where the development is subject to an enforcement notice.

Part 8 amends the Commons Act 2006 to introduce “trigger events” which prevent the registration of a Town and Village Green unless and until a terminating event occurs. The main trigger events include where an application for planning permission has been granted and where land has been allocated for development in a development plan. Additionally, land owners have powers to make a declaration ending the use ‘as of right’ over land

Section 2

Principal subordinate legislation

In addition to the primary legislation dealing with planning there is extensive subordinate legislation made under those Acts. Before the devolution of power to the National Assembly in 1999, much of this subordinate legislation was made on an England and Wales basis. Some of these pre-devolution instruments remain in force.

The Planning Acts provide for various matters to be included in or provided for in development orders.

The following are the principal development orders for the purposes of TCPA 1990:

The Town and Country Planning (Use Classes) Order 1987 (SI 1987/764)

The Town and Country Planning (Use Classes) Order 1987 prescribes a number of classes of use of land at a comparatively high level. Changes of use within each class do not require planning permission.  The Order is not exhaustive and not every use falls within a particular class.
Uses involving hazardous substances are excluded.

The Town and Country Planning (General Permitted Development) Order 1995 (SI 1995/418)

The Town and Country Planning (General Permitted Development) Order 1995 grants permission for development of specified descriptions.  Permission is granted for the development described in each class subject to exceptions and to conditions.

The Town and Country Planning (Development Management Procedure) (Wales) Order 2012 (SI 2012/801) (W. 110)

The Town and Country Planning (Development Management Procedure) (Wales) Order 2012 sets out procedures and technical detail for the administration of the planning system, including making and determining planning applications; consultation; appeals; local  development orders; certificates of lawful use or development; and the maintenance of registers of planning applications.

The Developments of National Significance (Specified Criteria and Prescribed Secondary Consents) (Wales) Regulations 2016 (SI 2016/53) (W.23)

The Developments of National Significance (Specified Criteria and Prescribed Secondary Consents) (Wales) Regulations 2016 set out the criteria for development of  national significance (DNS). Applications for planning permission for DNS must be made to the Welsh Ministers. The regulations also make provision for a consent to be considered by the Welsh Ministers alongside an application made to the Welsh Ministers for planning permission for DNS. 

The Developments of National Significance (Application of Enactments) (Wales) Order 2016 (SI 2016/54) (W.24)

The Developments of National Significance (Application of Enactments) (Wales) Order 2016  prescribes the relevant sections of TCPA 1990 which pally to the DNS process.

The Developments of National Significance (Procedure) (Wales) Order 2016 (SI 2016/55) (W.25)

The Developments of National Significance (Procedure) (Wales) Order 2016 makes provision for he manner in which planning permission for DNS is to be dealt with by the Welsh Ministers.

The Developments of National Significance (Wales) Regulations 2016 (SI 2016/56) (W.26)

  • The Developments of National Significance (Wales) Regulations 2016 make provision pre- application services by local planning authorities and the Welsh Ministers; prescribe functions relating to such applications and secondary consents which are carried out by an appointed person on behalf of the Welsh Ministers; make provision for the procedure to be followed in the examination of DNS applications; and set out how applications for secondary consetns are dealt with by the Welsh Ministers.

The Developments of National Significance (Fees) (Wales) Regulations 2016 (SI 2016/57) (W.27)

The Developments of National Significance (Fees) (Wales) Regulations 2016 make provision in respect of the payment of fees for pre- application services provided by the Welsh Ministers and local planning authorities and circumstances in which fees are refunded to applicants.

 

Section 3

Devolution of executive power

The Government of Wales Act 1998 provided for the transfer of various functions from UK government ministers to the National Assembly (as it was then constituted).

Most, but not all, functions under TCPA 1990 were transferred by the National Assembly for Wales (Transfer of Functions) Order 1999 (SI 1999/672). 

Those functions were subsequently transferred from the National Assembly to the Welsh Ministers by the Government of Wales Act 2006 (GOWA 2006). The Welsh Ministers now exercise the majority of the executive and subordinate legislative powers in relation to town and country planning in Wales.

Further functions under TCPA 1990 and the Planning Act 2008 were transferred to the Welsh Ministers by the Welsh Ministers (Transfer of Functions) Order 2018 (SI 2018/644).

As a result of the transfer of functions, statutes that were enacted prior to GOWA 2006 coming into force (in May 2007) should be read with care. References to the 'Secretary of State' will in most, but not all, cases now mean the 'Welsh Ministers' in their application in relation to Wales. Where functions were conferred expressly on the National Assembly in Acts of the UK Parliament passed between 1999 and 2007, the functions should largely be read as being exercisable by 'the Welsh Ministers'.

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