Friday, 4 February 2011
Welsh planning law to diverge further
As a planning lawyer who practises in Wales as well as in England, it has been a matter of concern to me for some time that Welsh planning law and practice is gradually diverging from the English system. This is making it increasingly difficult to be sure as to which statutory provisions apply in Wales and which do not. Even where primary legislation (such as the 2004 and 2008 Acts) was designed to apply in both England and Wales, the Welsh Assembly Government has still not made commencement orders in respect of a number of important provisions which have been in force in England for some time. Thus one has to remember that it is the ‘old’ law on these points which continues to apply in Wales.
Similar considerations apply where government Circulars are concerned. Wales always had its own numbering system for circulars - when the DOE or DETR (as it was at the relevant time) issued a Circular in England, the same circular, but under a different number, was issued by the Welsh Office. Then we had the PPGs (and, more recently, PPSs) in England, but these have never applied in Wales, which has “Planning Policy (Wales)” and a series of Technical Advice Notes (TANs). These, frankly, are not as thorough or as helpful as their English equivalents. Nowadays, English circulars do not have a Welsh equivalent, and so when a new circular on appeal costs was introduced in England (03/2009), the 1993 circular continued to apply in Wales (WO Circular 29/93).
What has prompted this diatribe is the news that the “Sustainability Committee” (sic) of the National Assembly for Wales has decided that Wales needs its own new planning law to cater for its distinctive needs. They seek to justify this by arguing that English and Welsh planning processes are so different that discrete Welsh legislation is needed. Any planning professional who practises on both sides of the Severn (sorry, Afon Hafren) would agree with me that this is absolute nonsense. It is just like the argument one sometimes hears from local councillors who say that, of course, “Trumpton is different” (usually as an argument that they should be exempt from complying with well-developed ministerial policy).
It might come as a surprise to the Assembly Members that the problems they uncovered ("managing social, economic and environmental sustainability priorities and policies" and "finding the required higher skill levels to cope with these", plus "the need for better training for LPA officers to ensure they are sufficiently equipped to make informed decisions") are precisely the same as those faced by local planning authorities in England.
I suspect that the timing of this report might have some connection with the forthcoming referendum on giving the NAW greater legislative powers. Much heat (but very little light) is currently being generated by adherents of the “Yes” and the “No” campaigns. There was a singularly unenlightening grunt-match between the two sides on BBC Radio Wales the other morning. I have no idea what the outcome of next month’s referendum is likely to be, but I am afraid it would have to be the “No” campaign that would get my vote. It makes no sense to have two increasingly divergent planning systems in what is still a single legal jurisdiction (England and Wales or, if you prefer, Wales and England). Wales is not as different as some people on the Welsh side of the border would like to imagine. It really doesn't need its own laws.
Diolch in fawr. Nos da!
© MARTIN H GOODALL