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Planning Law in WalesCyfraith Cynllunio yng Nghymru
Dr Charles Mynors FRTPI FRICS IHBC Barrister
The Law Commission The Law Commission
Independent statutory body Role to keep the law in England and Wales under
review and promote reform, simplification and modernisation
More than two-thirds of recommendations have been implemented
Currently on our 12th programme of law reform Consultation has opened on content of 13th
programme
The Law Commission
Part of 12th programme of law reform Proposed by Welsh Government Terms of reference to review the law relating to
town and country planning and make recommendations to simplify and modernise the law
The project
Timetable for the Review
Stage 1: Scoping Paper30 June 2016 Publication of scoping paper
30 June to 30 September 2016- extended to 30 October 2016
3-4 month public consultation
Stage 2: Consultation PaperSubstantive proposals as to the shape and content of an initial piece of consolidated and simplified legislation
To be published Spring 2017 3 month public consultation
Stage 3: Report to Welsh GovernmentTo be published by the end of 2017
The Law Commission
Planning law in Wales is fragmented, complex and difficult to understand
Since 2000, six Acts of Parliament and four Acts of the Assembly amending the TCPA 1990 etc
Difficult to determine whether amendments made to existing legislation apply in Wales, England or England and Wales
Publication coincides with, and is informed by, our report on the Form and Accessibility of the Law in Wales
Background
The Law Commission
Development of our own thinking
Opportunity to canvass views of professionals and stakeholders
Purpose of the scoping paper
The Law Commission
Considers the case for a “Planning Code” for Wales Discusses suggested scope of first phase of codification Proposes that codification includes:
technical adjustments to produce a satisfactory consolidated text
simplification by streamlining and rationalising process and procedure; and
writing into statute of propositions of law developed in case law where they may contribute to more accessible and coherent legislation.
Content of the scoping paper
The Law Commission
More than 48 pieces of primary legislation relating to land use and development in Wales
Devolution has added a new dimension to the complex legislative picture
Opportunity to review the balance between primary and secondary legislation
Codification provides the opportunity to create a piece of legislation that is more accessible, encourages public participation and helps promote economic growth
Case for a Planning Code
The Law Commission
Technical reform aimed at improving the clarity, consistency and accessibility of the law
Not intended to introduce policy change We think we should address:
Lack of definitional clarity or inconsistency in wording
Discrepancies Obsolete, duplicative and uncommenced
provisions Provisions not reflecting established practice
Technical reform
The Law Commission
Section 101 of TCPA 1990 provides for the constitution of a Planning Inquiry Commission to act as a tribunal at special planning enquiries
No Planning Inquiry Commission constituted since the power was created and function overtaken by the development consent procedure for NSIPs in PA 2008
Would repeal of provisions on Planning Inquiry Commissions improve the Code?
Example of technical reform (1)Planning Inquiry Commissions
The Law Commission
Planning permission operates alongside other statutory consent regimes
Unification of procedure might improve transparency, accessibility and consistency
Proposed focus on consents required for building and other related operations, specifically:
Listed building consent Conservation area consent Advertisement consent
Committed to maintaining current protection for historic assets
Example of technical reform (2)Unifying consent regimes
The Law Commission
Detail required to understand provisions contained in TCPA 1990 often found in case law and guidance
Putting this into the Code could contribute to a more complete formulation of the law in an accessible form
Addresses the following categories of case law: Definitions Planning law principles Gap-filling where the scope of statutory
provisions is unclear
Codifying case law
The Law Commission
Section 55(2)(d) of TCPA 1990 provides that the use of land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse is not to be taken to involve “development of land” for the purposes of the TCPA 1990
The definition of “curtilage” has developed in case law
Would a definition of curtilage on the face of the statute improve the accessibility and transparency of the law?
Example of codifying case lawThe definition of “curtilage”
The Law Commission
Detail required to understand provisions contained in TCPA 1990 often found in case law and guidance
Putting this into the Code could contribute to a more complete formulation of the law in an accessible form
Addresses the following categories of case law: Definitions Planning law principles Gap-filling where the scope of statutory
provisions is unclear
Codifying case law
The Law Commission
Planning (Wales) Act 2020 Management of Development (Wales) Act 2020 Regeneration (Wales) Act Historic Environment (Wales) Act Natural Environment (Wales) Act Access and Rights of Way (Wales) Act
Possible eventual structure of planning code
The Law Commission
Planning (Wales) Act 2020- general principles; planning authorities; the development plan; application to special cases; definitions
Management of Development (Wales) Act 2020- need for planning permission; applications; grant of permission; appeals; purchase notices and blight notices; revocation; unauthorised development;
-
First phase
The Law Commission
powers of Welsh Ministers under WDA Act 1975; enterprise zones; derelict land; new towns; urban development corporations; simplified planning zones; housing action trusts; rural development corporations
Regeneration
The Law Commission
Might include: Historic Environment (Wales) Act 20??
Cadw; world heritage sites; ancient monuments; listed buildings; conservation areas; parks and gardens; grants and loans; repairs
Natural Environment (Wales) Act 20?? NRW; national parks; SSSIs; AONBs; the countryside; nature reserves; forestry; trees; hedgerows
Access and Rights of Way (Wales) Act 20??Public rights of way; village greens; access land
Possible future phases
The Law Commission
Legislation applying only in Wales:Welsh Development Agency Act 1975Development of Rural Wales Act 1976Local Government (Wales) Act 1994 (Scheds 4-6)Planning and Compulsory Purchase Act 2004 (Part 6)Planning Act 2008 (Part 10)Planning (Wales) Act 2015 Historic Environment (Wales) Act 2016 [phase 2]
Repeals
The Law Commission
Westminster legislation as it applies in Wales:Local Govt, Planning & Land Act 1980 (Pts 15, 16, 17, Sch 25-31)New Towns Act 1981Town and Country Planning Act 1990Planning (Miscellaneous Provisions) Act 1990Planning and Compensation Act 1991 (Pt1, Sch 1 to 7)Leasehold Reform, Housing & Urban Devt Act 1993 (ss 177-182)Planning and Compy Purchase Act 2004 (Pts 3-5, 7, Sch 1-4, 6)Sustainable Communities Act 2007Planning Act 2008 (Part 9, Schs 7, 8)Criminal Justice and Courts Act (ss 91, 92, Sch 16)
More repeals
The Law Commission
National Parks and Access to the Countryside Act 1949 Historic Buildings and Ancient Monuments Act 1953 Civic Amenities Act 1967 Forestry Act 1967 Agriculture Act 1967 (Part 3, Sched 5) Countryside Act 1968 Ancient Monuments and Archaeological Areas Act 1979 Wildlife and Countryside Act 1981 (Pts 2, 3, Scheds 10A-16) Planning (Listed Buildings and Conservation Areas) Act 1990 Environment Act 1995 (Part 3, Scheds 7-14) Countryside and Rights of Way Act 2000 (Parts 1, 2, 4, Scheds 1-5, 9,
11,-15) Natural Environment and Rural Communities Act 2006 (Pts 2 to 6)
… and eventually more repeals
The Law Commission
…and all or parts of 21 other Acts, many more or less (but not quite) obsolete)
…
The Law Commission
Comments on scoping paper, please, by 31 October 2016 - is the project right in principle?- what topics should be included?- what existing law is redundant?- what case law should be codified?
Full consultation paper Spring 2017
What next?
ContactEmailEbont
WebsiteGwefan
www.lawcommission.justice.gov.uk
Tel/Ffon
020-3334 3829(Charles Mynors)
