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Welsh Government Launches Infrastructure Project Consultations

Morag Ellis QC

WG launched simultaneous consultations on “Changes to the Approval of Infrastructure Development” and “National Development Framework: Issues, options and preferred option” on 30 April. Consultations close on 23 July.

The first document reflects changes to the law as a result of the Wales Act 2017, which will, from 1 April 2019, have the effect of devolving power to the Welsh Ministers in relation to:

  • Applications for electricity generating stations up to 350MW, on and offshore, and associated overhead electric lines, up to and including 132 KV

Power has already been devolved in relation to:

  • Harbour Revision and Empowerment Orders
  • Marine licensing
  • Offshore marine nature conservation.

By default, in the absence of any new statutory procedures, these matters will not be dealt with under the Planning Act 2008, but under Town and Country Planning and Electricity Act processes.

The Consultation therefore seeks views on:

Proposals to establish a new process for approval of infrastructure development in Wales

  • Interim arrangements
  • Reforms to compulsory purchase in Wales.
  • The proposals are in 2 Parts. Part 1 addresses the short term with interim arrangements. Part 2 proposes a long term, bespoke procedure for consenting infrastructure projects in Wales. The Part 1 proposals would come into effect on 1 April 2019, while the Part 2 proposals would require Assembly legislation and take longer.

The Ministerial objectives are:

  • Providing a transparent, consistent and simple, yet rigorous process which strengthens the role of local communities
  • Being fit for purpose for Wales and able to meet future challenges
  • Streamlining and unifying decision making processes
  • Improving the current standards of service
  • Providing certainty in decision making.

The long term plan is to establish a new Welsh Infrastructure Consent, to replace existing provisions under the TCPA, Electricity Act and other regimes. Broadly speaking, the proposals mirror the Planning Act 2008 ‘one stop shop’ system, supported by clear policy and statutory time limits for decision making, WG not wishing Welsh procedures to be seen unfavourably by comparison with the system across the Severn. Qualifying projects will be known as Welsh Infrastructure Projects (“WIPs”).

 But there are differences. The Environment (Wales) Act of 2016 enshrines principles derived from the Planning (Wales) Act 2015 and the Well-Being of Future Generations (Wales) Act 2015 and the commitment to a National Infrastructure Commission for Wales and the National Strategy have played their part too.  Developments of National Significance (“DNS”), the National Development Framework (“NDF”) and the Wales National Marine Plan are therefore key in terms of providing a policy basis. A particularly striking feature is the flexible approach to some jurisdictional thresholds and to the format for examination of proposals. Thus there would be compulsory WIPs and a category of optional WIPs together with DNS designated in the NDF.  

Detailed proposals are set out in the document, but it is fair to say that the Part 1 provisions are a speedy response and even WG does not regard them as perfect. Rather than a ‘one stop shop’, these provisions will still require developers to do a certain amount of walking up and down the high street for all but the simplest of projects. Those who are impressed with the 2008 Act’s approach who are considering whether to invest in the short term in Wales or England may choose the latter as a safer, simpler bet. However, the detailed proposals by WG do seek to short-circuit the delays that can be associated with local decision making by placing jurisdiction in the hands of Welsh Ministers or the Planning Inspectorate for some, though not all, infrastructure projects.

The NDF consultation consists of a suite of documents, as befits it status under the Planning (Wales) Act 2015 as a statutory plan.

The NDF is proposed to be a 20 year national spatial plan for Wales. The Ministerial Foreword explains that the draft NDF reflects both the National Strategy and Future Generations Act principles. The aim is to co-ordinate and guide strategic development in Wales, with an emphasis on co-ordinating the planning of infrastructure and other development. The NDF is also to set the tone and direction of Strategic Development Plans and Local Development Plans. There are many more stages of public involvement to be undertaken, including a provisional 60 day consideration in the Assembly and publication is anticipated in September 2000. The Preferred Option has been subjected to Integrated Sustainability Appraisal and Habitats Regulation Assessment.

There is the familiar setting out of Vision and Objectives, with much use of jig-saw inspired diagrams. The 12 Objectives cover: Climate Change, Economic prosperity and regeneration, City Regions and Growth Deals, Rural Wales, Housing, Natural Resources, Circular Economy and Flooding, Culture and Heritage, Transport, Welsh Language, Health and Well-being, Digital Infrastructure and Cohesive Communities.

After testing 4 Options and the ‘Benchmark Option’ of No NDF, a ‘Hybrid Option’ was preferred. It is an Option for Sustainable Places, in 5 policy areas: Placemaking, Distinctive and Natural Places, Productive and Enterprising Places, Active and Social Places and Wales’s Regions. These areas give way to broad indications of policy intent.

The draft document is therefore at a generalised stage of formulation at present, but it is an important stage as it will set the strategic umbrella under which Stages 4 and 5 – call for evidence and projects and the publication of preferred options will be undertaken.