Planning in Wales

The launch of the Planning (Wales) Bill puts Wales on an irrevocable course towards an entirely separate planning regime akin to the system in Scotland. As part of this process, some interesting ideas are being rediscovered, varied and newly minted. The community infrastructure levy (CIL) has made the first of what is likely to be many forays into court, and those old stalwarts, green belt policy and environmental impact assessment (EIA), have also been the subjects of important decisions.

Separate system

The Planning (Wales) Bill 2014 was promulgated in October. The Bill will amend the relevant sections of the Town and Country Planning Act 1990 and the Planning and Compulsory Purchase Act 2004 as they relate to Wales. It is expected to receive Royal Assent in summer 2015 with a rolling implementation thereafter. The Welsh government sees it as evolution towards a more delivery-focused planning system. Others have seen the main theme as a reversal of localism, ie greater control over local planning authorities’ (LPA) powers by the Welsh government. This has caused comment on some thorny issues of trust, democratic legitimacy and whether Cardiff will have the resources and expertise to fulfil some of the roles it is taking on. Some headline points from the Bill are:

• a new national development framework (NDF), which will become part of the statutory development plan, though it will only relate to infrastructure and not development generally. A similar system has worked well in Scotland;

• developments of national significance (DNS) and linked applications, which will be made directly to the Welsh ministers, not to the LPA. The classification of DNS is for secondary legislation; however, the Welsh government’s consultation on the Bill recommended certain categories relating to energy, rail and road. For example, energy projects between 25 megawatts and 49 megawatts could be DNSs. This is a Welsh version of the nationally significant infrastructure project regime under the Planning Act 2008, which it will sit alongside;

• strategic development plans (SDP), suggested for Cardiff, Swansea and the A55 corridor in North Wales, where the strategic elements of local development plans (LDP) in these areas will be elevated into the SDP. This is a revival of regional planning which was recently abandoned in England;n power to insist on joint local development plans, and a formal expiry date for LDPs;

• a planning advisory service to facilitate culture change; and

• a prescriptive approach to the size of planning committees and a national scheme of delegated authority for planning officers to simplify the considerable variety on display at the moment.

In addition, Cardiff is seeking further powers from Westminster through the Silk Commission, and the Law Commission is currently consolidating all planning legislation relating to Wales (including the changes brought forward in the Bill), which will mean entirely separate Welsh planning legislation. Last, there is a major push to dramatically reduce the number of Welsh local authorities, which is likely to happen after the next assembly elections in 2016 and will also affect planning in Wales.

Community infrastructure levy

Fox Strategic Land v Chorley BC and others [2014] EWHC is the first significant consideration by the courts of the promotion and adoption of charging schedules under the CIL regulations.

A charging schedule sets the levy for future categories of development and must be based on objective evidence and be consulted on by the council. After consultation it is independently examined by the Planning Inspectorate, after which it is adopted with any recommended modifications.

The arguments raised by the appellant were all extremely technical in nature, and included the examiner’s approach to valuation evidence, the robustness of the council’s viability assessment and the relevance of future changes to the Code for Sustainable Homes. 

Having considered the procedure followed at length, the court concluded that Fox was, in effect, trying to rerun the merits arguments in court, and agreed with the council’s representative that, “it would be hard to find a provision more heavily laden with questions of judgment for an authority making an administrative decision”. That being the case, these sorts of decisions will only be challengeable on Wednesbury unreasonableness grounds (ie the decision was irrational), for which the threshold must be high, given the degree of discretion which is awarded to the decision maker in this process.

Somewhere in the region of 60 to 70 per cent of LPAs are not expected to have a charging schedule in place when the levy takes full effect on 6 April 2015, and it will be interesting to see whether other developers are inclined to challenge those charging schedules as they inevitably come forward over the course of 2015. CIL remains a nascent regime, and legal challenges to place flesh on the bones of the statutory framework will increase over the course of the next year, so this is an area to watch for future development.

The green belt

It remains a remarkable fact that despite the unremitting pressure on the green belt over many decades, the policy continues to perform an effective function, which is looked on with envy by many other countries. SoS CLG v Redhill Aerodrome Ltd [2014] EWCA is the latest example of the policy’s robustness. In this case, Redhill Aerodrome sought planning permission to tarmac its runway and install associated infrastructure to allow its expansion. It accepted that this was inappropriate development in the green belt but argued that the economic and employment benefits meant it should fall within the ‘very special circumstances’ exception in paragraph 87 of the National Planning Policy Framework (NPPF).

The inspector refused permission and the aerodrome succeeded in the High Court. The Court of Appeal, however, allowed the appeal and reinstated the inspector’s refusal. The case turned on the meaning of the key phrase ‘any other harm’ in paragraph 88 of the NPPF and whether it means ‘any other harm to the green belt’ or if it includes other harm relevant for planning purposes, eg harm to the landscape character, visual impact, noise etc.  

The High Court concluded that the NPPF (when read as a whole) had changed the approach to the ‘very special circumstances’ test. On this basis, Mrs Justice Patterson refused to follow her previous decision in River Club v Secretary of State for Communities and Local Government [2009] EWHC, where she gave the term its wider meaning. The Court of Appeal, however, reversed this decision and found that River Club had been correctly decided and that there has been no limitation to the test through the introduction of the NPPF.  The court concluded that the words ‘any other harm’ continue to have the wider of the two interpretations (as was the position in Planning Policy Guidance 2). 

The court pointed out that if the narrow interpretation was correct, then all of the considerations in favour of granting permission would only be weighed against some, rather than all, of the planning harm that would be caused by inappropriate development in the green belt, which, the court pointed out, would be ‘illogical’.  The defendant’s argument that the NPPF has changed the context of green belt policy and so changed the approach to a very special circumstances decision was thus rejected by the court. The green belt wins again.

Environmental impact assessment

Major decisions on nuclear power almost invariably attract legal challenges. The latest involves a challenge to the development consent order for Hinkley Point C nuclear power station with another exploration of the relationship between a key test under the Environmental Impact Assessment (EIA) Directive and a superficially similar test under the far more powerful Habitats Directive.

In An Taisce (National Trust for Ireland) v Secretary of State for Energy and Climate Change [2014] EWCA, the appellant raised the argument that the test for likely significant effects under the EIA Directive failed to have proper regard for the precautionary principle, and should, in essence, have followed the arguably extreme approach applied to the Habitats Directive in the landmark Waddenzee judgment in the European Court of Justice. If upheld, this would have had profound implications for the approach to EIA generally.

In rejecting the challenge, the Court of Appeal drew a marked distinction between the terms of the Habitats Directive, which protects designated and protected European sites, and the EIA Directive, which seeks to ensure that certain projects which may have significant effects on the environment are the subject of environmental assessment during the consenting process. It confirmed that the ‘real risk’ approach endorsed in the recent cases of R (Evans) v Secretary of State for Communities and Local Government [2013] EWCA and R (Loader) v Secretary of State for Communities and Local Government [2012] EWCA embodies the precautionary principle for the purposes of EIA.  SJ

Julian Boswall, pictured, is a partner and Stephen Humphreys a solicitor in the planning unit at Burges Salmon