Pwyllgor Newid Hinsawdd, yr Amgylchedd a Seilwaith

Climate Change, Environment, and Infrastructure Committee

13/09/2023

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Delyth Jewell
Huw Irranca-Davies
Janet Finch-Saunders
Jenny Rathbone
Joyce Watson
Llyr Gruffydd Cadeirydd y Pwyllgor
Committee Chair

Y rhai eraill a oedd yn bresennol

Others in Attendance

Hannah Hickman Prifysgol Gorllewin Lloegr
University of the West of England
Kelvin MacDonald Prifysgol Caergrawnt
University of Cambridge
Peter Morris Cyngor Sir Powys
Powys County Council
Sara Morris Awdurdod Parc Cenedlaethol Arfordir Penfro
Pembrokeshire Coast National Park Authority
Steve Ball Cyngor Caerdydd
Cardiff Council

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Elizabeth Wilkinson Ail Glerc
Second Clerk
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Lukas Evans Santos Dirprwy Glerc
Deputy Clerk
Marc Wyn Jones Clerc
Clerk
Mark Southgate Cynghorwr Arbenigol
Expert Adviser

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu’r pwyllgor yn y Senedd a thrwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:47.

The committee met in the Senedd and by video-conference.

The meeting began at 09:47.

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions, and declarations of interest

Croeso i chi i gyd i gyfarfod cyntaf y tymor newydd o'r Pwyllgor Newid Hinsawdd, yr Amgylchedd a Seilwaith. Rŷn ni yn croesawu Aelodau nôl am dymor newydd o waith craffu. Mae hwn yn gyfarfod sy'n cael ei gynnal ar fformat hybrid. Mae'r eitemau cyhoeddus yn y cyfarfod yma'n cael eu darlledu yn fyw ar Senedd.tv, ac mi fydd Cofnod o'r Trafodion yn cael ei gyhoeddi yn ôl yr arfer. Mae e'n gyfarfod dwyieithog ac mae yna gyfieithu ar gael ar y pryd o'r Gymraeg i'r Saesneg. Cyn bwrw iddi, gaf i ofyn os oes gan unrhyw Aelodau unrhyw fuddiannau i'w datgan? Nac oes. Diolch yn fawr iawn.

Welcome to you all to the first meeting of the new term of the Climate Change, Environment and Infrastructure Committee. We're welcoming Members back for a new term of scrutiny work. This is a meeting that's being held in a hybrid format. The public items of this meeting are being broadcast live on Senedd.tv, and a Record of Proceedings will be published as usual. This meeting is bilingual and simultaneous translation is available from Welsh to English. Before we start, may I ask if Members have any declarations of interests? No. Thank you very much.

2. Bil Seilwaith (Cymru) - sesiwn dystiolaeth gydag academyddion
2. Infrastructure (Wales) Bill - Evidence session with academics

Mi symudwn ni at yr ail eitem, felly, sef sesiwn dystiolaeth ar y Bil Seilwaith (Cymru). Rŷn ni'n dychwelyd at y gwaith craffu yma, wrth gwrs, ar ôl inni graffu ar y Gweinidog ar ddiwedd y tymor diwethaf. Mae'n panel cyntaf ni yn cynnwys dau academydd, Hannah Hickman o Brifysgol Gorllewin Lloegr Bryste, a Kelvin MacDonald, uwch gydymaith addysgu gyda Phrifysgol Caergrawnt. Ydych chi jest eisiau dweud gair bach ar y cychwyn?

We'll move to the second item today, which is an evidence session on the Infrastructure (Wales) Bill. We're returning to this scrutiny, following scrutiny of the Minister last term. Our first panel includes two academics, Hannah Hickman from the University of the West of England Bristol, and Kelvin MacDonald, senior teaching associate with the University of Cambridge. Would you just like to say a few words at the beginning?

Thank you very much. Just to say I'm delighted to be here to share insight. I'm a professional planner by background, now working in academia. Thank you.

Thank you, and thank you for inviting us. I am an academic, but I suspect I may be here partly because I've been an examining inspector with the inspectorate in England, dealing with major infrastructure projects. I have dealt with a gas-fired power station, an offshore windfarm, connector cables, the only airport to have gone through the system, and most recently advising on the lower Thames crossing. So, I bring that experience as well. I do want to say as well that if I refer to the English system, it's not because I think it's better, worse or the same, it's because it's the system that I'm most experienced with.

Wrth gwrs. Grêt, diolch yn fawr iawn am hynny. Fe wnaf i gychwyn yn syth, felly, os caf i, jest drwy holi: mae nifer o'r rhai sydd wedi ymateb i ymgynghoriad y pwyllgor ar y Bil wedi amlygu'r angen am eglurder wrth symud o'r trefniadau presennol i'r broses newydd, yr elfen yma o transition; beth yw'ch barn chi ynglŷn â hynny, a sut ŷch chi'n meddwl y gallwn ni gael eglurder yn hynny o beth? Hannah.

Of course. Thank you very much. I'll start straight away, if I may, just by asking: a number of respondents to the committee's consultation on the Bill have identified the need for clarity on the transition from current arrangements to the new process; what are your views on this, and how do you think clarity could be achieved? Hannah.

We know one another, so we're likely to try and defer and be polite.

And don't both feel obliged to answer every question. Obviously, if you have something to add, clearly do so, but otherwise we can keep moving on. 

09:50

Thank you, that’s very helpful. I have a very simple answer here. I think clarity for all parties is absolutely essential, and so a clear and straightforward approach to transition is what’s required. I think, given the stretched nature of public sector resources in local planning authorities, which we may well come on to talk about it later, I think that’s absolutely paramount. So, if you’re going to go for this legislation, which I think has lots to commend, then be clear about the transition to that.

Thank you. Again, I’m starting already in referring to the English system. The Infrastructure Planning Commission, as it was, was set up, as you know, under the 2008 Act. It started work in October 2009, but actually didn’t receive any applications. It wasn’t allowed to receive any applications until it had issued guidance and advice on how it was going to work, and in fact, the first applications didn’t come in until August the year after; and incidentally, the first of those was in Wales. So, stressing the need to get everything in place before you start—not amending things and changing things and adding to things, but making it very clear how the system is going to work and then starting it on a fixed day.

Hannah, in your paper, you talk about the balance to be struck between the quest for speed of consent and the potential consequences for future delivery, and I wonder if you could just expand on that.

Yes, of course. I think this is a really interesting area of debate, and it’s about whether speed of consent actually leads to speed of delivery. So, I think it’s really important that we understand end-to-end development processes. Some evidence—again, forgive me—in England is that in a rush to consent, this can result in elements being left to post consent. There are pros and cons to this, because this can give flexibility—certainly, that’s something that promoters like—but also uncertainty, and undoubtedly elongated delivery timescales. So, one potential element of the quest for speed is this issue around post-consent licences, further consents required, and I think that’s something that we are going to come and talk about a little bit later, assuming that there’s time. There's an example of secondary consents causing substantial delays in relation to, for example, the Thames Tideway tunnel, where the number of additional permits required caused significant delay before construction could commence. So, I think it’s important to understand the timescales required for examination—they’re very important to get right and I’m sure Kelvin will make some observations on that—but not to assume that those timescales therefore result in faster delivery. So, it’s about having due diligence in relation to post-consent space of delivery.

Given that you’ve touched on that now, then, we might as well address that issue now; I think it’s easier. How do you deal with that, then; how can the Bill address that? Because clearly, those still need to be consented in some way or other.

Absolutely. I think it’s really important—it's one of the things I said in my evidence—that there is sector-by-sector understanding of what the likely need is for further consent permits and licensing, and that’s something we’ve specifically asked the Government in England to look at. And it does vary hugely, but there are many opportunities at examination—and Kelvin will be familiar with this—to actually subsume some of those additional permits into the consent granted. So, it does vary across sectors, and a lot of this, is—I have to say—about resourcing and behaviours. Developers, for example, that gauge early with some of the regulators have the opportunity to design elements into their consent that would then ensure that a permit is either granted very easily post consent, or can be subsumed within the consent itself.

To what extent could that be an evolutionary thing, as opposed to lining all your ducks upfront, because clearly resource is issue in that respect, isn’t it? 

I think it is a balance that has to be struck on a case-by-case basis, I’m afraid to say. But I think it is really important that the examining authorities are making sure that applications, when they are submitted, are cognisant of all of those likely future requirements, so that there can be an assessment and a discussion about the possibility of drawing those in, and where those can’t be drawn in, that there is real clarity of understanding about what’s required post consent. I think the evidence in England suggests that there is a trend towards far greater things happening in the post-consent space, which is completely antithetical to the idea of the one-stop shop, and I know that Kelvin has made some observations about that in his evidence.

09:55

Very briefly, I entirely agree with Hannah; the idea that it is a one-stop-shop is a myth. It tries to be and it works very well in trying to be. But in my evidence, for example, I've talked about environmental permitting and species permitting, which are run in a parallel system. Where it works, that's fine, because the permits arrive during the period of the hearings and the inquiry, and so the examining authority would know exactly where they are. But if there is a delay on this, then you don't know whether your recommendation to the Secretary of State, in that case, is valid or not, because you don't know whether the permits are coming through. So, I agree with Hannah that any move that can be made—and I think this would have to be done in statute, whether primary or secondary—is to be welcomed.

It's all right, it's fine. I just wanted to pursue another aspect of aligning speedy consent with speedy delivery, which is that, in house building, we have land banking, where people sit on land in order to prevent a competitor getting hold of it. How would you be able to devise a system that ensures that, once consent has been granted for something that we've decided is urgently needed, they then get on with it and there's not just failure to progress?

My understanding is—and Kelvin, do correct me if your view of the evidence is different—that this is a very rare occurrence within the infrastructure sector. Actually, the upfront cost required in submitting these applications is such that, once consent has been granted, they really do want to get in and put the spade in the ground. I'm happy to reflect upon that and come back to you, but I think the evidence is very different as compared to house building. 

Thank you, that's reassuring. The Minister is arguing that the balance is right between what's on the face of the Bill and what's left to subordinate legislation, because it allows flexibility. What's your view of that position? And could you just elaborate on how you think it might be improved?

We'll take it in turns. I think my starting point is that you do need secondary legislation. The primary Act can't deal with all the detail. Again, the 2008 Act has—as Hannah knows better than I—a number of pieces of secondary legislation. There are four main ones. So, you do need that. But I have been through the Bill, clearly, in advance of this meeting and counted 35 times in the Bill where it says 'regulations may', and I'm wondering whether that's actually going too far the other way. Maybe we'll come on to later some things where I feel the Bill ought to spell out some key issues rather than waiting for regulation. So, you do need it, but maybe not to the extent that the Bill contains.

My additional observation would be that it's about clarity of communication, often. Again, in preparing for today, I went to look at how this practice is unfolding England, and there's the primary legislation and then there's a number of amending pieces of legislation. And we have more amendments going through currently in the Levelling-up and Regeneration Bill. I think it makes it very difficult for participants to know actually what, in very simple terms, the legislation is. 

And if I could reflect upon one of your next questions, which is about the risk of meaningful engagement for communities, if I'm allowed to jump the gun here, I think that this is a significant risk. Some research that we've done looking at project implementation shows that, actually, this is a major barrier for engagement by communities and this causes delay at delivery because they don't understand the process and how to engage with it meaningfully. And this isn't just communities; this is people seen to be relatively expert within the field. Obviously, this is slightly tangential to the question about the balance between primary and secondary legislation, but I think the observation is about getting the legislation right in the first place, taking the time to do it so that there isn't then that resulting set of subsequent amendments through Bills that have an entirely different name and therefore aren't seen as part of the infrastructure sphere necessarily. 

I'll turn to the issue of significant infrastructure categories, if I may. Whilst there's broad support amongst respondents to the consultation about the infrastructure categories, some, including you, have pointed out some other areas. There are some areas of energy or related aspects of significant infrastructure that it's pretty clearly evident are coming down the pipeline already. Amongst those are energy storage, and I would argue that amongst those are also hydrogen. And it's not that the applications within hydrogen are novel in terms of the technology, but the application, including the settings, are very novel, to come to that point of community engagement, and so on. So, I'm just wondering whether either of you have views on the categories that are included, whether they feel right or whether there are omissions. Hannah, you have submitted some views on this, perhaps you could start.

10:00

Yes. I think the question in my mind is perhaps not so necessarily focused on the categories themselves, notwithstanding the fact I did raise a question about energy storage, it's about the rationale and consistency of approach. So, being very clear about what's in and what's out and why, and how thresholds have been derived at a certain level or not. I know, again forgive me, there's been an interesting debate in England about energy storage, and I see the decision has been made to remove that from the national significant infrastructure projects process, but in parallel there's a House of Lords committee looking contemporaneously at the issue of energy storage in relation to net zero. So, again, I think it's about, forgive me, taking time to have the rationale right, so that there aren't questions about what's in and what's out, and energy storage might be just one of those areas where, given the ongoing discussion about it across the border, it would be worth having a concrete story around it.

Again, I agree. I won't say that every time, but I do.[Laughter.] But, I suppose, going back to the previous conversation, it depends whether you want to get the Bill right or whether already you've flagged up something that may need to be changed through regulation. Surely it's better to get the Bill right in this key area of what is out.

As Hannah has said, I'm also concerned with a little woolliness around the edges of the categories themselves. In my evidence I cite the case of alterations or improvements to a highway within this subsection only if the alteration or improvement is likely to have a significant effect on the environment. Surely, you test whether it's going to have a significant effect on the environment through going through an inquiry process. And all the time I'm sure both of us will be talking about clarity, the need for absolute clarity before this system is started. So, it's not just what's in and what's out and what may need to be brought in later, but making it absolutely clear with the levels of output, with the phraseology, what this means, so that any developer knows exactly whether they're in or they're out.

Thank you. That's really helpful. So, there are clearly two things we're going to need to test with the Minister and her officials: one is whether the categories are—what's included within the categories; but, secondly, this aspect of the clarity of what a significant infrastructure development actually is, a significant infrastructure project. You raised some issues in respect of the definition and that fuzziness you were talking about then, so what can we do to improve the Bill to clarify that definition of what a significant infrastructure development is?

I think, very simply, take out phraseology that requires an opinion.

Interpretation. I'm sad to say that I can't quote the 2008 Act off by heart, but in that the phraseology, for example, of alteration to a road is definite. You know without requiring a planning adviser or a lawyer to say, 'Am I going to be in or out?' So, anything that requires interpretation is not necessary.

I think for me it might be about the adjoining guidance and memorandum of explanation. For me, it's interesting, I was thinking about what does 'significant' mean, and if you read the Bill, 'significant' means development specified as such, but actually there isn't an explanation, which wouldn't be necessary in legislation, but might be in a wider document as to the 'why' attached to those thresholds, so you're able to communicate with the wide set of stakeholders necessary to deliver the Bill as to, again, what's in and what's out. So, not necessarily for the legislation, but I think, for the communication, that's really critical. The 'why' is not there in any of the documentation that I have read.

10:05

Of course, we never know what might be urgent within the next couple of years with the climate change, and I think water's a good example here. It seems that for long spells there's a shortage of water, and then there are short spells when there is far too much water. So, in terms of thinking ahead, and being fleet of foot, because suddenly you're faced with a rapid change, how effective do you think this Bill will be in those circumstances?

Do you want to go first on that one?

I haven't looked at the categories in huge detail. I do know that dams and reservoirs and transfer of water resources are specified already. I suppose it's a matter of setting the levels as well. I've commented that, again, in comparison with the 2008 Act, some of the thresholds are lower in Wales for very understandable reasons, and it's a matter of setting those thresholds. But it is indeed a real issue, and it overlaps again, going back to a previous point, about things like abstraction licences and that area. So, again, I can only repeat myself with the need to get it right at this stage.

Thank you, Chair. Hannah, can I just turn to that point about the definition and just ask you, is there anything you want to add on the points that you've submitted already about the use of third party impact as a potential measure, alongside existing ones within the Bill around capacity and scale? How would that help?

That's a really good question. I think one of the things that's perhaps unclear to third parties is that some thresholds relate to the scale of operation, some to capacity, some to measures of length—things that in some senses are, of course, extremely clear, but there may be a case for thinking about thresholds on a case-by-case basis, but do think about those wider impacts. Of course, that's always the balance between a simple quantitative threshold, and that may not be sufficient in terms of defining what's significant in a particular case. And perhaps this is where there's merit in thinking about those optional thresholds for opting in and opting out. Kelvin may have his own views on that, I'm sure. But I think the opportunity, potentially, for things to be opting in or to be directed in on the basis of their significance for third parties is something that is worth exploring. I'm not saying I have a concrete view on that—[Inaudible.]—but I think that there's a danger of these things always being seen in purely quantitative terms.

Okay, well, you've touched on the issue there of the problem of ambiguity, and once again back into individual cases and arguments being made and interpretation and what that does to the pipeline. That's been raised with us by others who say the idea of optional thresholds could potentially add that. Could you just go a little bit further on that? I don't know, Kelvin, if you want to as well, and whether this is a good or bad idea and how we avoid it being a problem for the whole trajectory of this Bill.

Again, starting with clarity and the need to get it right in the Bill, there will be cases, as maybe Hannah has alluded to, where Welsh Ministers may, for an individual application, for an individual scheme, deem that it should go through this process.

Can you give us an example of what that might be? It's hypothetical, I know, but—.

Just trying to think of a case where—. Maybe the airport case that I dealt with. There was some discussion—I won't go into that, because we'll be here for three days—as to whether it was a nationally significant infrastructure project or not. But, in the end, it was easier for the Secretary of State to deem that it was, because the thresholds were unclear and the application was unclear. And, certainly, considerations about wider community impact, or wider impact on the economy of Wales, would come in. But what I'm trying to say is that this may operate on an individual scheme basis, but I think there's going to be a lack of clarity if guidance can change the thresholds across the board.

10:10

Yes, thank you very much. And clearly, Chair, if that were to be the case that that was an approach taken by Welsh Ministers, we'd need to look at how we incorporate that into the timescale that this Bill is trying to deliver as well—so, ministerial decisions on that sort of judgment.

Well, speaking of timescales, I think Janet is going to take us onto that.

Thank you. Good morning. The committee has received mixed views on the 52-week statutory time frame for deciding applications. Some respondents have been concerned it could slow down decisions on the smaller projects, and others have said it wasn't long enough for more complex projects. What are your views on how the time frame is set out in this Bill?

I think I'll defer to you on this, Kelvin, given your experience of working directly within these timescales.

Trying to meet the timescales is hard enough. [Laughter.] A number of points, and I'll try and string them together in a logical way. I suppose the starting point is that the process can take shorter than the timescales required.

That's an upper limit. On a more sort of technical nature, I think the Bill has got the timescale wrong, because what the Bill appears to have done is to look across at the 2008 Act and say, 'You've got six months for the actual inquiry, the hearings and the written representations, you've got three months to write the report, you've got three months for the Secretary of State in England to make the decision', which makes a year. But that leaves out the period after you accept an application, and while you're consulting the public, while you're taking representations, while the examining authority are deciding how to run the inquiry, and that is left out. So, this timescale, actually, will not work as it's drafted in the Bill. That's the main point. 

The final point that I think I want to make is: how do you define what is a smaller project? Certainly, in my experience, some of the smaller projects may be the most complex and have the most impact, and/or have the most objections to deal with, or representations to deal with. So, I think it might be difficult, once you've got the timescale right, to then sub-divide it into large projects or small projects.

Just one brief observation. Again, it's probably worth looking across the border at the amendment going through the Levelling-Up and Regeneration Bill to fast-track certain schemes. So, being cognisant of the debate around that, and, obviously, there has been quite a lot of pressure, particularly from some smaller scale linear schemes, to have that fast-track process. But we don't yet have the detail on quite how that's intended to unfold in practice. 

And so, do you—? There is the option to allow Welsh Ministers to extend the 52-week period. Do you agree this should be extended?

I haven't done—

I think there are two points. I haven't done a recent analysis, but the analysis that I did do while I was at the inspectorate showed that all the extensions of timescales were due to the Minister, not to the hearings or the report writing. [Laughter.] In every case—and this may well be current now—the examining authority met the timescales, but the Minister didn't. And, increasingly, that is the case. In some cases, the Minister, for those reasons, may need to extend the timescales. It's just so complex in the decision making. But, again, in the 2008 Act, it requires the Minister to make a statement before Parliament if the Minister is going to increase the timescale, not just report on an annual basis when they've done it and increase the timescale by direction. So, the Minister is accountable to Parliament for, in a way, going against the statutory requirement.

10:15

We've received suggestions that there should be statutory time frames for each stage of the process as set out in the Planning Act 2008 for the nationally significant infrastructure projects process, including for validating applications. What are you views on this?

As I say, you do need to build in that—. Well, firstly, there's the point at which you accept the application as being a valid application. It's hard, in my experience—and this may be wrong—to set a timescale from when the clock actually starts ticking, because is it from the first contact of the applicant to the decision maker? When do you start that? And it must be in the ability of the applicant to take advice from the decision-making body and maybe go away and say, 'I'm going to work on this further' without a time constraint. But, certainly, as I say, once you've accepted the application, you need a timescale then for starting the hearing, which the 2008 Act doesn't have, strangely.

Huw, you wanted to come, and then we'll move on to Jenny.

You mentioned very clearly that the 52-week limit is probably an error, a miscalculation. It doesn't take account of all the factors. I didn't hear you say what it should be or what it could be. 

Probably—

Based on the same logic of, 'It takes this long. It takes this long.'

Probably add another three months from acceptance.

I think, when I was working in the inspectorate, we used to try to get hearings started within about 13 weeks or so, which is three months. Don't quote me on that. It's too late. [Laughter.]

It has been known for Ministers to delay decisions because of an upcoming by-election or something like that, but how much of it is just laziness within the Minister's department, not to do the legwork whilst the inquiry's going on, to familiarise themselves with the competing issues so that the Minister's got much clearer advice when they're actually on the three-months meter?

The Minister is meant to rely on the advice from the examining authority. The examining authority is meant to produce a report that covers all aspects. Throwing it back to the examining authority, my own colleagues, maybe in very, very few cases the Minister has had to go out for consultation again because the Minister doesn't feel they have the advice in the report. And so there are cases, understandably, where an examining authority may ask the Minister a question in the report, which isn't necessarily right. So, there may be circumstances and, of course, circumstances may change—overall circumstances with the airport I dealt with. Of course, that was before the Paris agreement was taken into account. So, circumstances may change. I'm not saying the Minister should never change, but, certainly, in England it's becoming more and more frequent, for whatever reason, which may be political.

Okay, so, mainly, it's reluctant to bite the bullet and make a decision. Thank you.

I'm going to talk about status and hierarchy of the planning policy, which I'm sure a lot of people would be very interested in, and you raised those concerns about provision for infrastructure policy statements. Do you want to expand on them?

Shall I go first? I think this is a really important area to get right, and my reading of the Bill and the explanatory information was that it wasn't yet sufficiently clear, because there is reference to the national development framework for Wales, which, as an aside, I think is a really positive thing, and any marine plan and any relevant policy statements to which the application relates. So, we need to be really clear about what those likely policy statements are going to be, and what the expectation of the Welsh Government is in relation to those, because clarity of policy environment is fundamental to the effective operation of this system, whatever the details in the Bill. And, again—forgive us—the evidence from England is that outdated national policy statements have undoubtedly caused delays in decision making and also, of course, the reference that Kelvin has just made to an increasing tendency towards disagreement—I'm not sure if that's the right word—between the examining authority's recommendation and the Secretary of State. So, that is something to be absolutely avoided if the intent is obviously to speed up the delivery of these critical projects.

I think one of the benefits—although it has been controversial in England—of the national policy statements as the suite of documents for deciding on projects is that that has been very clear that that's at the top of the tree. Here we have, I think, potential issues around the hierarchy in relation to the role that the national plan plays vis-à-vis other policy statements, should they be prepared, and is the intention that these policy statements, should they be prepared, should be these 'how not whether' frameworks. That's how they've been referred to in England. So, if it's clear in those policy statements that that's the infrastructure that's needed, the decision is going to be one that's a positive outcome, whereas if we have a range of different policies that are being used for decision making, that has the potential to create confusion and undermine the likely positive outcomes.

10:20

I certainly agree with Hannah. I've always thought, when operating within the system—and I've left the inspectorate now, I should have said; not under a cloud, I hope, but I no longer work for them—that this was one of the key changes to the planning permitting system, where the Government is required to set out their policies very clearly on a whole range of things, from energy to ports, to roads, and that the examining authority is required to make a recommendation in line with those. One of the reasons why this system came into being was that inquiries—and Heathrow terminal 5 is the one that's always quoted—took years, literally years, and part of that was because there were endless debates about need, whether they needed this or not. What the infrastructure policy statement should do is set out the Welsh Government's view on is this needed or is this not needed, and then that whole area of policy discussion is taken out of the hearings and the recommendations, and so you cut to the impact, in a way.

So, it is hugely important. As I read the Bill—again, I agree with Hannah—one of the laudable things about the Welsh system from my point of view is that you do set out policy on a national scale through a number of different ways, and this is to be praised. But the Bill maybe isn't clear; it does talk about precedence, but what happens if there isn't an infrastructure policy statement on one of the categories of infrastructure? Then you resort to the national development framework for Wales, but what happens if that doesn't cover that? So, you could be in a policy void in that, and the Bill isn't clear; it's a fairly low bar in the Bill for an infrastructure policy statement to be an infrastructure policy statement. So, I would suggest it may need tightening up and that the primacy of those IPSs be brought to the fore.

May I make just one additional point on that? I think one of the criticisms from some stakeholders in England has been the lack of an integrating framework for the national policy statements, and I personally think that's a very valid criticism. So, the 'Future Wales' national plan has the potential to do that. In its current form, I wouldn't say it provides that, because it doesn't detail nationally significant infrastructure. So, that's something, I think, that the committee should really consider.

10:25

Okay. We've been told by the Minister she doesn't think there are any gaps and that there's no infrastructure policy statements that are going to be planned, which goes against everything you've just said. And you quote categories here like ports and radioactive waste geological disposals not being covered. I did see your reaction to what I just said, so do you want to expand on it?

Goodness. I can only repeat myself and say I saw these as being at the heart of the system and these statements, and I did, albeit very quickly, look through the national development framework for Wales, looking and doing a word search for these categories, and certainly those two categories didn't come up at all. But what I thought I didn't have to do, but sort of half did in passing, was to see whether that framework established need, and I don't think it does. I would need to look again at it, but I don't think is does that basic task of establishing need.

No, it doesn't, I don't believe, and also it's not due for revision or renewal for another three years, I think. So, yes, there may be a bit of an abeyance in that respect. Okay, thank you. Jenny next.

Thank you. Mr McDonald, you are obviously a fan of the Planning Act 2008. [Laughter.] 

It's very sad.

I just wondered how you think this—. There's discretion in the Bill to allow the examining authority to decide how the application is going to be dealt with, whether written procedure, a hearing or inquiry. Isn't that sufficient to give the examining authority clear powers to determine it's going to go down one avenue or another?

I think the point that I was making in my evidence is that I'm a fan, having operated the system of—I'm deep-diving now into the minutiae—not having cross-examination—

—at hearings.

But you want to have the cover of the planning Act:

'It is for the Examining Authority to decide how to examine the application.'

End of story.

Certainly, I suggest you need that phrase in the Bill, because, as I said in my evidence, it has served me very well on occasion when, during a hearing, the procedure is being questioned, and that is a fallback. But the point I was making about cross-examination was that the ability still to bring in a formal inquiry rather than a series of hearings, as one of the options for examining an aspect, does bring in the possibility of cross-examination and KCs standing up—and maybe we'll get on to public involvement again in a second—and I think it's hard enough to make this system accessible to the public, but to make it adversarial and cross-examining is intimidating. So, that was my main query about the option allowing an examining authority to decide what type of hearing to hold, no more than that.

Okay. Some of the submissions were arguing that Welsh Ministers needed to be the decision maker on every application because there's political accountability—if you don't like what they're saying, you can chuck them out. Others felt that the examining authority to decide would mean less complex applications could be decided much quicker. Could you just touch on the case for this political accountability, as opposed to the examining authority, who's an expert?

I suppose my starting point is the history of the old Infrastructure Planning Commission. I started in the business as an infrastructure planning commissioner but never got a chance to do a case where I could decide myself, sadly. But in the Localism Act in 2011, the ability of the commissioners to decide was taken away, purely, as I understand it, for the reason that you say—that we are not accountable. These are really major decisions, by their nature, that impact on the future of Wales, and to have an unaccountable civil servant equivalent making a decision seemed somewhat perverse at the time, I must admit. The argument was that you did take the politics out of what could be a very technical decision to be made. But if we're talking about major infrastructure, significant infrastructure, my personal view is that you can't take the politics out, and there must be accountability in that.

10:30

I would share that view entirely, absolutely.

Diolch. Good morning. I wanted to ask you firstly about local planning authority resources and the extent to which they'll be able to cope with the new process. The Minister has said that she thinks that they should have enough resource, but some experts who have given their opinions to us have said that they might struggle. Some have suggested that there should be guidance, further training, perhaps a central pool of experts available. What are your views on where you would fall then in terms of that? And also, do you think that the provisions in the Bill that relate to cost recovery by LPAs is sufficient, please?

A really important question, I think, in terms of the effective operation of the Bill in practice. Members of the committee I'm sure will be aware of recent research and a report by Royal Town Planning Institute Wales—forgive me, I know there's a better Welsh pronunciation—of the well-being of planners and the impact of the planning system in Wales. And it's quite dispiriting reading, if you haven't come across it; 74 per cent of planning officers report being overstretched, and a significant number of those being severely overstretched. I've done quite a lot of research in England recently, which has focused particularly on the post-consent sphere, where the role for local planning authorities becomes very significant. They become a decision maker not just a participant in the system in relation to the discharge of requirements. And lots of authorities would say that the workload associated with infrastructure is at least the same post-consent as it is prior to consent. So, my own view would be that the resourcing of local authorities to support the delivery of infrastructure is absolutely critical. I wouldn't agree with the position you've been presented with in relation to resources being sufficient, and I think there's an awful lot of evidence around that.

In relation to cost recovery, again, this is something that's been looked at in detail in England. And I know, again, that RTPI Wales has raised some really interesting questions about the proportion of reinvestment costs for local authorities. I'm not sure that it's clear why different organisations are going to have full costs reimbursed and local authorities a proportion. So, I think that's something that certainly needs questioning.

Again, I agree. Just to add, as you'll know, the explanatory memorandum sets out a series of costs to various bodies, and it does seem good to me that pre-application engagement will mean that a fee is payable to the local authority doing the local impact report—attracts a fee to the local authority. But the explanatory memorandum says that taking part in the actual hearings and giving evidence may cost local planning authorities £21,200 per year to engage in the process, which will not be reimbursed, it says. So, given the overall stress, strain on local planning authorities in terms of resources, this does seem to be an extra burden. There is provision for what are called planning performance agreements, where the applicant themselves will reimburse. But certainly, my experience of those in the system is that they're very variable, both in terms of whether they're taken up and the amount, and you can't rely on those. But it does seem overall that, while this is a step forward in building in fees, it is placing extra strain on under-resourced local authorities.

10:35

One further observation is that I'm sure Members will be aware that there's a centre of excellence run by Suffolk County Council in England, and they've been doing a lot of interesting work in this area. So, it's worth looking at that, and I can share further evidence subsequently if that's helpful. 

Yes, that would be, please. Thank you very much for that. The other thing that I wanted to ask you about is about community involvement. This has already arisen and it's something that many of us as Members are concerned about in relation to the Bill. Hannah, earlier on you were talking about speed of consent might—that there may be a risk that community involvement could be jeopardised in some way because of the other cogs that are turning in this legislation. And Kelvin, you talked about the intimidating, adversarial system that might be set up. Could you talk us through whether you think that the Bill has this right, where you think that the potential main risks are of losing out on community involvement, particularly for groups of people who aren't well organised and who don't really understand the system well, but who might miss out on opportunities to be able to get involved early on, and whether you think there are specific ways in which the Bill could be strengthened to mitigate that?

In this case, I wonder whether I've missed something, because I can't see, looking through the Bill—and I haven't read it line by line, word by word—where the Bill makes it more accessible. And as I say in my evidence, I was reading through the Minister's statement to this committee before the summer, saying

'one of the things I very much like about this new system is it gives communities more involvement and more opportunity to be heard.'

And I've looked through the Bill and, to be honest, I can't find where that is. It does give the right to be involved, but a right to be involved, as you're saying, is very different from setting up a system that is accessible and encouraging and non-intimidating. And my short answer is that I can't actually see that in the Bill at the moment. I think I would need to think through how the Bill could be improved in that respect. Part of it may be resourcing of community groups to prepare evidence and be engaged with the system, but I could do a note on this if you want, rather than thinking on the hoof at the moment. 

Yes, that would be very useful, please. Thank you very much. Thank you. 

Janet first, then, and maybe we'll come to Hannah for your reflections on that as well. 

It's on this, because we had a prime example recently in north Wales with the Awel y Môr scheme—

Yes, offshore windfarm. Yes, thanks, Llyr. And people have been saying, 'What's happening?', 'Oh, there's going to be a consultation', and without any notice they just turned up on the promenade in Llandudno where they said they met with stakeholders. Well, if you come to Llandudno promenade at any time, you'll have holidaymakers, local residents who feel really—. I have actually been complaining to the company, 'Come on, we need to see proper community involvement.' We haven't even seen the night-time scenes yet. There's the actual visual for the day-time scene, but the night-time visual we've not seen, and we've been asking—. As an elected politician, I've been asking and asking for this, so if I'm struggling to engage with the community involvement as such, how residents do it I have no idea. I'm not being funny, but the terminology used and the technical side of it is very, very—. You know, people struggle to get their heads around that kind of—.

And you'll never capture everyone, obviously, in any process, but it's about minimising those people, really, isn't it, making sure that people feel that they've had a fair say?

Just a brief observation to agree with Kelvin. I wanted to say there's lots of reference in the Bill to local impact reports, and I think there's a danger of seeing these as a panacea for community engagement, and community engagement clearly needs to be much more than that. But what I would say is that, looking at practice, it is often very scheme-specific, and I could give you examples of developers that I have worked with on research where their approach to community engagement has been exemplary within the infrastructure planning sphere, and in fact the infrastructure planning sphere has aided that in the way it has unfolded, and has seemed to be very beneficial. But that’s not practice across the board, and so there’s a question about what the Bill can do to ensure that that is the requirement.

10:40

Sorry, Chair, I know we're really up against time, but we don't want to mix apples and pears here. There's the quality of the community engagement when the proposal is coming forward and whatever, and we see varying practice, good practice and appalling practice, in that. But it's that front-end part of the scheme when, frankly, the only people who are spotting this are us, if we're engaged properly, local authorities, maybe the CPRW, the equivalent of CPRE in England, and others. I'm just curious—we discussed this in a pre-briefing—how do we, at that point, flash it up so CPRW or Powys can talk to a local community and say, 'By the way, 10 years down the line, five years down the line, three years down the line, there's going to be a major development here. Now is the time.' How do we do that, from your experience?

There are, again, focusing on the Bill—there are mechanisms. The 2008 Act requires an applicant early on in the process to write a statement of community involvement, saying how they're going to involve, who they're going to involve, over what timescales or what periods, how they're going to take into account comments they've made, how these are reflected in further iterations of the scheme. And then, when they submit the application, they have to write a community involvement statement, and in fact one of the reasons, and I know this from experience, why the inspectorate will refuse an application is that the applicant has not stuck by their agreed statement of community involvement, and, for example, there is no indication of how they've taken into account community views in the scheme that they're submitting. So, there are statutory mechanisms that can be introduced. I know the time is running on; I do make reference in my evidence to section 55 of the 2008 Act, which sets out the criteria by which the inspectorate can refuse to accept an application, and so this is one of the means of building this into the Bill. But I will get my thoughts together in a note.

Very briefly, as I know we're out of time. Thank you very much for that offer of a note. In that note as well, would it be possible please for you to reflect on whether you think there are any other countries where you think that they're getting this—? I know this is not a question of getting it right, but where you think they're getting it a bit better, that we could learn from.

I'll try. [Laughter.]

On that I would say there's actually an extraordinary lack of comparative practice in relation to infrastructure planning in the international sphere, something we're all dying to do research on. But Kelvin might be challenged, not because of intellectual ability but just in terms of existence of evidence. 

Excellent. Okay, well, I think it's probably best that we draw the session to a conclusion there. Can I thank you very much? You've significantly enriched our scrutiny of this Bill, both with your written evidence and your oral evidence today. I'm very, very grateful. Diolch yn fawr iawn. 

The committee will now break until—. Well, we will restart at 10.55 a.m., so maybe Members could reconvene just slightly before then, when we'll be receiving further evidence from local planning authorities. Diolch. 

Gohiriwyd y cyfarfod rhwng 10:43 a 10:56.

The meeting adjourned between 10:43 and 10:56.

10:55
3. Bil Seilwaith (Cymru) - sesiwn dystiolaeth gydag awdurdodau cynllunio lleol
3. Infrastructure (Wales) Bill - Evidence session with local planning authorities

Croeso nôl i'r Pwyllgor Newid Hinsawdd, yr Amgylchedd a Seilwaith. Rŷn ni nawr yn mynd i barhau â'n gwaith craffu drwy dderbyn tystiolaeth gan gynrychiolwyr o awdurdodau cynllunio lleol, ac yn ymuno â ni ar gyfer y sesiwn yma yn rhithiol mae Sara Morris, sy'n gyfarwyddwr creu lleoedd gydag Awdurdod Parc Cenedlaethol Arfordir Penfro, Steve Ball, sy'n bennaeth cynllunio gyda Chyngor Caerdydd a Peter Morris, sy'n arweinydd proffesiynol, cynllunio, Cyngor Sir Powys. Croeso i'r tri ohonoch chi. Rŷn ni'n gwerthfawrogi'n fawr y ffaith eich bod chi'n rhoi o'ch amser i fod gyda ni bore ma.

Mi awn ni'n syth i mewn i gwestiynau, ac mi wnaf i efallai bigo lan, i gychwyn, ar y ffaith bod nifer o'r rhai sydd wedi ymateb i ymgynghoriad y pwyllgor ar y Bil wedi adnabod yr angen am eglurder pan fo'n dod i drosglwyddo o'r trefniadau presennol i'r broses newydd—y transition period yma. Er enghraifft, roedd cyngor Ynys Môn yn dweud y dylai fod unrhyw waith pre-application sydd wedi digwydd yn barod pan fydd y gyfundrefn newydd yn dod i rym, y dylai hwnnnw aros yn ddilys ac y dylid fod modd defnyddio hwnnw o dan o broses newydd. Beth yw eich barn chi ynglŷn â hynny ac ynglŷn â sut y gallen ni fod yn cynnig eglurder, efallai, i'r rheini sydd yn rhan o'r broses pan fo'n dod i'r trosglwyddo o un broses i'r llall? Dwi ddim yn siŵr pwy sydd eisiau mynd yn gyntaf ar hyn. Steve, diolch yn fawr. 

Welcome back to the Climate Change, Environment, and Infrastructure Committee. We're now going to continue with our scrutiny work by receiving evidence from representatives from local planning authorities, and joining is for this session virtually we have Sara Morris, who is director of placemaking with Pembrokeshire Coast National Park Authority, Steve Ball, development management and head of planning with Cardiff Council and Peter Morris, who is professional lead, planning, Powys County Council. Welcome to the three of you. We appreciate the fact that you're giving us your time by being with us this morning.

We'll go straight into questions, and perhaps I'll pick up, to start with, with the fact that a number of respondents to the committee's consultation on the Bill have identified the need for clarity when it comes to the transition from current arrangements to the new process—this transition period. For example, Anglesey council said that any pre-application work that has already been undertaken when the new regime is introduced should remain valid and there should be a way of using that under the new process. What are your views on this, and how could clarity be achieved, perhaps, for those who are part of the process when it comes to the transition from one process to the other? I'm not sure who'd like to go first. Steve, thank you very much. 

Good morning. Good morning, all. Thanks for having us here today. I think, in terms of a transition period, the interesting point is that, obviously, I think section 1.3 refers to a transition period but there's no information on exactly how that's going to be managed. I think, generally speaking, we just need to have some clarity upon how it would be managed and how those affected currently can seek pre-application advice and where it is in the system and how that will actually work. Generally speaking, I think there's clear validity in terms of anything that has been undertaken up and to the point of the new regime is introduced should remain valid. So, I support the views from Anglesey in that regard, but I think it's the clarity that will come through the secondary legislation that is critical. 

Good morning, everybody. I think the comments that Ynys Môn made are valid. I think everybody wants to work efficiently. So, if we can reuse evidence or preparatory work for emerging projects, if they do transition into different consenting regimes, that's common sense and good use of local authority resource—good use of everybody's resource really. I think the triple proposal is much wider than the development of national significance regime, because it incorporates other consents as well. So, I would be thinking that there probably needs to be some sort of review of each project as part of that, or we need some clarity around that, because one regime includes several consents, whereas the DNS regime includes one consent. So, there might need to be that review process within it. 'How?' was asked, I think. I think the timing of things is key as well. Certainly, on behalf of the Welsh Local Government Association, I know we've raised an issue around the national or the policy statements that will come forth to support the new regime. I'd think the applicability of those to DNS projects also needs to be clear. That's key, to my mind: should those be taken into account as one scheme exits and the new scheme intros itself?

11:00

Diolch yn fawr iawn. Ocê. Iawn. Gwnawn ni symud ymlaen at Jenny, te.

Thank you very much. Okay. We'll move on to Jenny, then.

The Minister argues that the balance is right between the clarity of what's on the face of the Bill and the flexibility that's being permitted through subordinate legislation. I wondered if you agree with that approach, or whether the balance is right. I don't know who wants to go first. Mr Ball, do you want to go first? Yes. Go ahead, Steve Ball.

Sorry, I put myself on mute—apologies. I don't like always going first; I'll let Peter or Sara go next. I saw some of the academics session earlier, and I'll be honest, I hadn't gone through and counted, like one of our colleagues in academia, but I noted that he said that there were 35 regs and that may be too far. But I think, generally speaking, planners don't have a problem with the principle behind things being dealt with in secondary legislation, but there's clearly a lot of detail and I think the critical thing is getting that right, and, indeed, engaging with, particularly, local planning authorities and other parts of the process to make sure that they are right, and I think it's the commitment from Welsh Government to engage with us to make sure that it is correct.

So, we'll come to things like resources and fee structures and form and content, et cetera, all of which are fine in terms of being dealt with in secondary legislation. I don't think I've got a particular problem with the flexibilities there, but I think it's the clarity of the legislation that is going to be critical and how that ties into robust secondary legislation and how it's clear in terms of the explanatory memorandum, and the comms that come out about that that will engage in the process so that there's detailed understanding of how it works. So, I don't have a problem with the balance as it is, but the problem is that we don't really understand at the moment exactly what all that secondary legislation going to actually say. So, it's about how we can interact with Welsh Government to make sure that we get it right, to make sure that the system is fit for purpose from the start.

The problem in terms of the public is, if you have layers of subordinate legislation, it makes it rather difficult to understand 'What are the rules of the game? And how do I get to have my say?' So, Sara, did you want to come in?

Yes, thank you. Bore da. Good morning. I think just to make the point on that that the clarity that we're seeking is not just for us as local planning authorities, it's for developers as well, who will be investing considerable resources in preparing applications, and they will need to know under what regime are they preparing for, and make sure that their timings are appropriate if they want to move for an application under the new regime. So, that's why it's so critical either to have it in secondary legislation with, as Steve said, sufficient engagement, or in the Bill itself.

Thank you. Peter Morris, did you wish to add anything, or are you—?

No. I think Sara and Steve have covered it well. I think everybody likes clarity, because they can work from certainty. Where things aren't clear, people are working with unknowns, so the more certainty we have as local authorities, the more certainty developers have in bringing projects forward, the more certainty the public has, the clearer it is for everybody.

I'm also practical and reasonable, I know that it could be a very, very long piece of legislation if all of this was added in as well. So, I think we have to be sensible about the size of the legislation and whether we use secondary legislation too. So, I'm very practical and reasonable about the approach being proposed.

Just very briefly, I'm also very mindful of the law reform that's going on in Wales in terms of Charles Mynors's work, which is all about making sure that, in Wales, things are better. And at the moment, the secondary plus primary—. There are so many issues and amendments and changes that happen over time that it has become incredibly complex and difficult for even planning professionals like us who've been in the game a long time to understand, let alone others to engage. So, alongside that law, we need to make sure that things like this actually are reflected as they go through to make it easy to understand for people, whoever they may be, particularly planning professionals, to engage properly in the process.

It's not necessarily culling, it's more just rationalisation and pulling things together. My personal view—it's outside of this form of evidence—is that we need to move things forward technologically. We're at a technological age that we should be able to continually update so that there is one source of everything that pulls everything together, and, no matter how you change it, everyone can go to one area. Wales has got the opportunity to be the best at that, and I think the work that Charles Mynors and the team are doing on that has the opportunity to do so. In that regard, as long as the reform works in the future, it doesn't necessarily matter in terms of the interpretation of primary versus secondary, it's about how it's able to be pulled together, however it may get changed in the future. Because one of the issues with secondary is the constant amendments to that process. It's about making sure it actually updates the initial secondary legislation and it even cross-references to that planning Act in an easily distinguishable manner, and I think there's a real opportunity for that in Wales. So, if that's done properly, it doesn't matter quite so much what's in secondary in my opinion.

11:05

Okay, thank you very much. Right, we'll move on to Janet.

Thank you, Chairman. Many respondents—. Good morning—we're still morning, aren't we? Many respondents are concerned that current LPA resources will be unable to support the new process. Guidance, training and a central pool of experts available to planning authorities have been suggested. Now, the Minister has told us that LPAs should have enough resource. We've heard this on so many other Bills, and when the reality comes down to it, we don't, but, in this particular instance, given the pressures and the number of planning officers that we're short in Wales and the planning officer resources, how feasible is it that LPAs will be able to support the new process?

Steve to start out. Go on, sorry. Sorry, let's have Peter first then this time, sorry.

I think it's interesting that you've got three hands shooting up on this point.

I think the interesting point here, and apologies for going first, guys, is that we've got an hour to talk about the general process here, and we could probably have a day where we talked just on this one issue. I think that's a critical point.

Perhaps just as an introduction to the chat, my personal experience—so I'm currently the operational manager for strategic development and placemaking in Cardiff, but I've previously been responsible for development management as a whole in Neath Port Talbot, and, before that, in the Vale of Glamorgan. When I was in Neath Port Talbot, as an authority, we dealt with two large NSIPs, one of which was the tidal power lagoon, another one that was a power station for Tata Steel, and we dealt with numerous developments of national significance in terms of windfarms and slightly smaller matters, so I think I've got quite a lot of good experience in terms of understanding what the actual implications of the current regime are.

With respect to those who introduced it and have perhaps considered it, I strongly feel, and this is my personal opinion—. I don't think the DNS regime has worked well, not necessarily in terms of the delivery of the infrastructure consents itself, but in terms of the impact on local planning authorities and that failure to actually recognise that right from the start, or, indeed, to listen to local planning authorities for the last eight plus years about those impacts. So, I think it was introduced without a true understanding of those resource implications.

We as LPAs continue to do so much of the actual legwork behind these DNS applications, and the NSIPs as well, which is a lot for those people dealing with this process. We get questions, we have to raise—you know, we have to do the communication, we have to do the LIRs, we have to pull everything together. We have to fully engage in that process at pre-application, and yet we might, if we're lucky, get—[Inaudible.]—for pre-application, which barely scratches the surface of anything, £7,700 for a local impact report, only if we're good boys and girls and actually get a response in five weeks, which is very, very difficult. Local impact reports—I've done a number of them, and I actually see their purpose, but I think that, when it was introduced, it was like—. And I actually had a chat with a member training when we got the chief inspectorate of planning coming in that, 'All you have to do is local impact reports.' But it is so much more than that.

The whole point of the planning process as a whole, the major themes—as I'm sure the committee appreciate—the major themes for the town and country planning application process underpin the whole planning authority service from front to end, which includes all the—[Inaudible.]—side, which includes all of the non-statutory stuff, it includes all the way through to consenting and discharge of requirements and conditions, enforcement, the works. With respect, again, and I'll let colleagues come in and then we'll have this debate, I actually strongly feel that the research that underpins the regulatory impact assessment and identifies the costs involved—. Being honest—personal opinion again—I think it's fatally flawed. I don't think it barely comprehends the impact. I don't think it was at all clear that research was undertaken with the full context of what it was trying to inform. I think not enough response came in, and I think it was very tightly formed in terms of what kind of costs involved in doing local impact reports without actually thinking about the whole process.

And the last thing I'd just say in that in terms of fees, I think, is add the clarity. So, if an application, a DNS, for a windfarm that I have looked at, which—[Inaudible.]—was involved in, in Bridgend County and then Neath Port Talbot, if it was a town and country planning application, that would have generated income of something in the region of £300,000 for Bridgend, and about £40,000-odd for Neath Port Talbot. But instead of that, each local authority got 7,750 quid; there were no planning performance agreements in place, even though we tried—it just didn't transform, but there was significant work involved in that.

So, that kind of demonstrates that the fees that you'd normally receive for the TCP applications have always underpinned the whole planning service. Now, there's a hell of a lot of work that needs to be done for that whole fee regime, but there’s a clear and tangible need for the fee regime between TCP applications and the Wales infrastructure consent regime to be pulled together more, so it's more together, so it's—. You know, when you get to the option threshold, it's quite clear that a choice is being made not because of the cost of an application fee, but about who is the best person to deal with it and what the appropriate resource is to allow us to do it. There's a lot more work we can do, but perhaps in the questions—I'll let my colleagues have a chance for now.

11:10

There we are, okay. Peter. We need to unmute—. No, hang on. It's being done automatically, Peter. Hold on. 

My mistake. Apologies. I'm certainly not going to repeat everything Steve said. I'll try and add to what Steve has said. I think capacity issues are very live with us as a local authority at the moment, and I know it's a concern of many other local authorities across Wales at this moment in time. I think they're having that with the DNS regime at the moment. There's a lot of interest there. My perspective on that is that probably reflects the response that we've seen to 'Future Wales' as we see developers coming forward, certainly in this part of Wales, with things like windfarm proposals. We struggle to find capacity just supporting those, and I know developers do as well in terms of—. We haven't always got the necessary resource, the expert advice internally to support us with those projects. They raise complex issues, so we do have to procure additional support, and I know we struggle at times to find that support, and there's little resilience there. So, it's not just us as officers struggling here; I think it's sectors of specialisms, experts, the numbers of experts out there as well, which is an issue.

I think the other dimension I wanted to raise was that the change, or that the proposed infrastructure consenting regime is different to the DNS regime as well. It's there to combine a whole series of consents. Now the impact or implication of that for local authorities is that it will reach further and deeper into each of us as local authorities in terms of how we support that regime, so when it comes to—. I know Steve has mentioned fees, but, actually, we can't just replicate the DNS fees here for local authorities, because that reach that developers will make when they're preparing and developing applications into the local authority will reach across lots of different service areas. I think we probably see the local planning authority maybe as the front door that they access those services, but if we're looking at things like common land, that's not within my remit, and I suspect it won't be in quite a number of local planning authority remits. They're other service areas—highway agreements and so on. So, I think the fee regime needs to reflect that wider reach that these projects will have, and there are resource implications then for these other service areas.

So, I think I just wanted to get that sort of different perspective of the regime compared to the DNS regime over to this committee. You can go to Sarah now—or Sara, sorry.

Sara, ie. Diolch yn fawr. Sara.

Sara, yes. Thank you very much. Sara.

11:15

Diolch, thank you. I previously worked for Pembrokeshire County Council up until a year ago, and on their assessment, as an authority, they have lost over £500,000 in the income since the DNS system was introduced. That was at a time when the planning team was reduced by 40 per cent over eight years because of budgetary pressures. So, I can only describe that as utterly galling as a planning professional.

In terms of capacity to respond, I think it’s really important to stress that it’s not just planners that feed into a local impact report. So, typically, if you have something like a wind turbine, you’d be pulling in your ecologists, you’d be pulling in your landscape officer, you’d be pulling in your historical buildings officer, you’d be pulling in the geographic information system teams to check whether the visual impacts that have been demonstrated are accurate or not. Apologies, somebody is mowing outside my window—

Can you hear me? That's okay. And, as Peter said, with the broadening to an infrastructure consent, you’d be looking at an even wider group of consultees. And whilst there is an attraction to the notion of a central group of experts that you could draw on, I think, quite often, what you need is that local expertise, so that understanding of, 'If I stand in this conservation area, there will be direct intervisibility with the site that’s in question.’ And that’s really difficult to get from an expert who, perhaps, isn’t as familiar with that locality. And I think, we’re looking at corporate joint committees, we know that they will be recruiting for planning experts, for ecologists—there are certainly not going to be enough to go around, in my view.

I think one of the points that I wanted to make was about the challenges that, as a national park, we face where a proposal is in an adjoining authority. So, obviously, with Pembrokeshire, there’s a lot of intervisibility between Pembrokeshire County Council’s planning area and the national park’s area. Now, Pembrokeshire County Council obviously does get a fee for a local impact report when it’s in its area—however small that fee is, it does get a fee. The national park, however, does not, and quite often, we’re having to undertake considerable work to assess the impact on the national park.

And if I can mention the Rhoscrowther DNS, our historic building officer, for example, spent four days giving evidence to a public inquiry at a cost to the authority. And obviously, when officers are tied up with that work, they’re not able to move on the smaller applications that, at the same time, are still sitting there. So, it is a real, real concern. And I very much hope that there is an opportunity here to look afresh at the needs of supporting local planning authorities so that they can properly respond in the way that we all want to fully to these applications. Thank you.

Okay. There's a lot there and you're right, there is a danger we dwell—. I mean, we get the message; we get what you're saying. I know Steve wants to come back in, but, Jenny, do you want to come in first? Then we'll come to Steve and then we'll go back to Janet.

Why is it not possible for planning authorities to go for the full cost recovery when they're considering X or Y? I appreciate there's a slight difference in the powers of the Pembrokeshire planning authority.

Yes. Steve, do you want to come in on that and add the point that you wish to make?

Yes, thank you. It's an interesting one because the DNS regime when it was brought in was brought in on this whole full cost recovery, but it was all based on full cost recovery for the planning sector at the time, obviously now PEDW and the—[Inaudible.]—of how long it takes to deal with things in terms of all the hours spent et cetera. Local planning authorities don't work that way, but there's an absolute need to make sure that there is full cost recovery for local authorities. But it's not just about full cost recovery for dealing with the actual process of an infrastructure consent, it's about the whole lifetime of that from start to finish. And that's where the current TCP regime does seek to do that.

I think the other interesting point from my perspective—and I tried to say this years ago, when the DNS was brought in, but we were paid lip service at best—is that our role as local planning authorities is to ensure that we appropriately consider and engage in the DNS process, and indeed it will be the infrastructure consent process. But we're talking at the moment maybe about schemes where generally we might be supportive because it's introducing new infrastructure, which is something that should be supported. But there are numerous examples of development of national significance or other major schemes where, being blunt, local planning authorities do not support those schemes.

So, to give an example, if you've got an application for a large windfarm coming in that the community are up in arms against, the local planning authority have fundamental concerns about, the members are strongly opposed to for numerous reasons, if we start talking to a developer and saying, 'Well, we're really not happy about this', first of all you're unlikely to get a planning performance agreement, because why would you? Secondly, you won't get any extra income other than £7,750, again if you're lucky, if you do it in time. And thirdly, a significant amount of work would be involved, akin to a large-scale public inquiry, of which I've done many, where you'd need to get experts involved, you'd need to get barristers involved, you'd need to have numerous officers involved, the cost of which can be astronomical. They can be tens if not hundreds of thousands of pounds, which under the town and country planning regime you at least have the backstop that you might have a £200,000 fee that absorbs some of those costs. But with an infrastructure consent or DNS regime currently, actually, all of those costs are borne by the public authority in trying to defend the scheme and nothing comes from fees and nothing comes from Welsh Government and nothing, probably, comes from the developer.

Our job is to defend against inappropriate development in the wider public interest and yet actually not only is the resource implication for local authorities substantial at a time when we barely have capacity to deal with what we currently deal with, but ultimately the cost to the public purse is huge. And you talk about full cost recovery, but that is the full cost recovery that would be needed for such a scheme. And even if then you lose that, i.e. it gets granted consent, then you've got the whole issue about the discharge of requirements or conditions, then you've got issues potentially about enforcement, all manner of things. So, it's the whole service that needs to be funded. And that's where the regime at the moment is just flawed. It is my professional and personal opinion that it's flawed and there's a need for a lot of work. And I refer back to the research that was undertaken; with all due respect, I just don't think it's fit for purpose in actually understanding the full extent of those costs, and I think a lot of work needs to be done with all Welsh local authorities.

We've got a real opportunity—because there are not many of us—to be collaborative about truly understanding what that is, and I think trying to align the fee regime, as I said. It may be as simple—and this is my view—as saying that, if it's a town and country planning application, you pay 100 per cent of the major fee or whatever it might be to the local authority, but if you either have to go through infrastructure consent or you choose to go through infrastructure consent, there should be a percentage of that fee—if it's, say, 50 per cent, then if it's a £300,000 application, then the local planning authority immediately knows they're going to get £150,000. Now, it may be that, overall, over the whole lifetime, it may cost more or less than that, but at least there an appreciation of what it is. And I think the whole issue of optional thresholds, which we'll come to later, is also interesting because you've got to make sure that the right choice is made for the regime due, not because of the cost of an application—it could be cheaper to do an infrastructure consent—but it's about who is best to deal with it and making sure it's wrapped up and making sure local planning authorities are appropriately resourced through the fee regime to actually deal with it properly.

I'm sorry there are so many things wrapped up there, but ultimately we as local planning authorities really, truly want to engage with Welsh Government to make sure that the fee regime as a whole, the town and country planning regime, is right. There were a number of different bits of research recently about it that didn't get anywhere. There seems to be resistance to increase application fees. It hasn't happened for a number of years. The local planning authorities are on their knees in terms of budgets. We can't plan, we're losing staff, we need to plan for the long term to make sure that we can truly deliver, because I think every authority and every officer I know in all the main authorities who deal with these things desperately wants to deliver high-quality development and wants to deliver infrastructure development in the best possible way through the system, but we're doing it literally by the seat of our pants without actually appropriate thought given to it. So, that's a very strong message, not just from me but across the board from every single local planning authority, and that's the message that I'd like you to take today, please.

11:20

And I think you've done that very eloquently. Thank you very much. Okay. No, that's an important piece of evidence for us, because clearly we envisaged this might be an issue, but it's clearly a huge issue and not just another issue, and that's registering clearly with us. We're going to have to move on, I'm afraid, because time is against us. Huw.

11:25

Chair, I'll only ask a couple of the questions, because I think we can follow up in writing, but just a couple of questions on significant infrastructure categories. There was broad support amongst respondents to the categories that are included in the Bill, but some said that energy storage should be included, or hydrogen should be included, although Newport council said specifically that energy storage should be explicitly excluded. Do you have any views on the categories that are within the Bill and the thresholds? Again, you don't all have to answer this, but would anybody like to have a go? Go ahead, Steve. Away you go.

I'm always like this. Sorry. I would agree in terms of excluding battery storage, personally. I don't think that's something that would be a nationally significant project. I think, generally speaking, the mandatory thresholds are probably welcomed largely by most authorities, because what it does is it sets the bar higher in actually making sure that this Welsh infrastructure regime does deal with just the most significant national infrastructure projects. I think that's what it's supposed to do, and I think there's full support for that. The benefits of that, in many respects, are for local planning authorities, many of which, with appropriate resource, would be the best people to deal with the smaller scale stuff. So, I think, thresholds wise, it's probably reasonable.

I think the optional threshold, as I alluded to earlier, is a slight concern insofar as it gives a developer an option whether or not to choose to go through the infrastructure regime. My own view on that is that I don't have a problem necessarily, but local planning authorities need to understand with more certainty. But more to the point, if it's only a single regime—. So, if it's an application that only includes planning matters, I don't believe that they should have the option to go through the infrastructure regime just because they think they might get an easier ride from PEDW, for example. I think if it's a single regime and it's below the mandatory, it's probably fine that we deal with it at the local level. Because I think we're all about doing things properly, but we're all about actually dealing with the local determination of matters that actually are local and aren't truly of national importance. That's generally how I feel. 

I could see your colleagues were nodding there, so I won't necessarily come to both of you unless you stick your electronic hand up now and say desperately you need to say something. I'm assuming you'd apply the same to hydrogen. Generally speaking, in our earlier session, it was said that the technology behind hydrogen is not novel technology. However, the applications, like battery storage, can be novel, particularly when they are, for example, close to residential areas or industrial areas. So, if it's not appropriate to describe them as nationally significant and falling within this regime, can you just give us an indication of whether you think you've got the appropriate policy structure in place to deal with not novel technology but novel applications for you? Are you hunky-dory in local authorities and national parks for that? I'll come to your colleague. Go ahead.

If something is novel, obviously we've got to do the research around it. We won't necessarily be able to draw on experience with that. Generally, I would say we would be able to manage that—not an issue. I think the other point I was going to make is that defining what's nationally significant is key in all of this. I think we want the bar to be set at the right level.

The other point is if it was left as a planning application for a local authority, and issues of national significance emerged during that process, the system already enables the Welsh Government to put holding directions on and ultimately call in directions, to be the decision maker itself. So, there was always already a backstop position if something did develop into that more national arena.

That's really helpful. I'll bring Sara in now as well, but I wonder if anybody—Sara or anybody else—would like to come back on that issue of what is nationally significant, the issue of the threshold, and the proposal that future energy generation projects between 10 MW and 49 MW would be consented by LPAs rather than Welsh Ministers. But Sara, I'll come to you, and then back to you, Steve.

11:30

I just wanted to make the point on hydrogen that it's quite often associated with solar or with wind elements when it comes in. I think it, perhaps, in my view, might be helpful to include hydrogen in the definition. In terms of the schemes that I've seen at a very early stage of proposal, they're alongside significant wind and solar, so that they are generating green hydrogen as a proposal. 

For me, the proposal for 10 MW and 49 MW to be consented by LPAs is one that I would personally support. It is something that LPAs would be capable of dealing with, and it would mean that the fee, obviously, fully stayed with the LPA, which is, as we've discussed, something that Planning Officers Society Wales, particularly, would support. 

Brilliant. Steve, finally, you're going to be supportive of that as well, I'm guessing. 

Yes. I was going to say briefly on hydrogen as well that I think new technology—. Hydrogen has got a real opportunity in terms of decarbonisation, in terms of the agenda. Generally speaking, at this stage, I don't think there's a need to introduce it, not least because, actually, it's probably not going to be significant in scale to the extent that it becomes nationally significant, and the issue will probably be largely restricted to local; the national side of things is just its contribution towards climate change generally. So, I wouldn't support it being in there, but the point of the Bill at the moment is it does offer the opportunity, as emerging technologies come about, and the potential impacts of those arise, for the Welsh Government to introduce additional thresholds or categories to come in. So, that's how I think that should be dealt with in future. 

And, yes, in terms of the 10 MW and 49 MW thing, I dealt with lots of windfarm stuff when I was in Neath Port Talbot, and things have moved on significantly. We used to have turbines that were 1.3 MW turbines. They used to be 100m high; now they're up to 250m high. They were up to about 3 MW, and now, they're up to, potentially, 4 MW, 5 MW and 6 MW. So, generally speaking, the impacts, while potentially significant, actually are such that the Town and Country Planning Act 1990—. Well, it should be done under TCP in the majority of circumstances, with the local authorities able to deal with those.

The issue, as I said before, is where the thresholds are optional and allow people to bypass it. For example, if a local authority makes it clear pre application that they're objecting to it, that in itself might mean that it goes down an energy infrastructure consent regime, which you might argue could potentially make it quicker, but, at the same time, makes it less engaged with the local community and more difficult for local authorities to resist because of the issue that I referred to earlier in terms of the ability to defend, in the wider public interest, against schemes that are inappropriate. But, generally speaking, I think bringing things more under TCP is a really good thing, and leaving this regime to deal with the truly nationally significant ones is fully supported, subject to detail. 

Diolch a bore da. Roeddwn i eisiau gofyn i chi am fel mae'r grwpiau cymunedol neu'r gymuned yn gallu ymwneud â'r prosiectau mawr, ac os ydych chi'n meddwl bod y Mesur yma yn cael y balans yn iawn. Mae nifer o bobl wedi rhoi tystiolaeth i ni yn dweud y bydd yna risg i fel bydd cymunedau'n gallu ymwneud â'r broses. Os ydych chi'n cytuno â hynny, sut ydych chi'n meddwl y bydd y Mesur yn gallu cael ei wella?

Thank you and good morning. I wanted to ask about how community groups can engage with these large projects, and whether you think that this Bill is striking the right balance. Many people have given us evidence to say that this will present a risk to how communities can be involved with the process. Do you agree with that, and, if so, how do you think the Bill could be improved?

Pwy sydd eisiau pigo lan ar hwnna gyntaf?

Who wants to pick up on that?

I would, but I missed the first part because the translation didn't come through. I don't know if the others might have understood more, sorry.

Forgive me, Steve. I was asking about community involvement and whether you think that the Bill gets the balance correct in terms of whether community groups could be disenfranchised because of this Bill—whether you agree with that. If you do agree, how do you think the Bill could be improved, or do you think that there is sufficient balance already in the Bill?

Pwy sydd eisiau pigo lan ar hwnna? Sara, wyt ti eisiau—

Who wants to pick up on that. Sara, do you want—

Can I have a go, Chair? It's Peter Morris. I think community involvement in the DNS or planning applications for any proposed scheme is really important. Does the Bill go far enough? This is my perspective: the Bill needs to be clearer about how communities are involved and when they’re involved the process. But I think a lot of it is probably at the practical end of the implementation stage of this, when projects are being developed. From a local planning authority perspective, we get lots of queries when projects are at the start. We're not even involved at that stage. So, I think it would be useful, whoever the examining authority is, if there's earlier information available to communities. The information at the moment tends to be added to the PEDW website, really, when the application has been submitted. There's no early information. Members of the public tend to access that information using a developer's website, and I think there's probably a little gap there that needs to be plugged where the examining authority can actually make that information available earlier. And it's around roles, really—how the community input into projects. I think they do want to input early, and that's something I've always encouraged when developers come to us here. They want to, as well, because at the end of the day those communities, as soon as projects are successful and get consent, are the ones that have to live with them. It's really a practical thing I think, in my mind, that one. I don't know if that helps. Maybe Sara or Steve will add to it if they think—. I can see Sara's got her hand up. Sorry, Chair, I'm chairing now for you.

11:35

I think one of the things that local communities can struggle with is understanding what documents are being used to assess a proposal, and I think this probably comes back to the point about what infrastructure policy statements will look like and whether they're subject to consultation, because if communities don't have the opportunity to input into the statements that are being used to assess the proposals, then they may feel limited in how they can influence a decision when it comes to an application.

Thank you both for that. Secondly, the Bill allows for Ministers to make quite significant changes using secondary legislation. Does that make it harder, do you think, for people to engage in the process and to understand the process? In the previous evidence session, one of the witnesses talked about how the system can be intimidating for members of the public. Do you think that this will make that more of an issue? Who wants to go—? I think, Steve, you've got your hand up.

Thank you. I don't think necessarily the addition of secondary legislation itself will make it more intimidating. I think the process, generally speaking, is quite intimidating, however that is, whether it's in the Bill or secondary. A lot of it is about the explanatory memoranda about the actual process, explaining it, about making sure that the public feel truly engaged and have an understanding of it. I think local planning authorities can have a role in that, but, ultimately, it's to make sure that, through PEDW or through the developer, the true engagement at the earliest time not only identifies what the scheme's about, but really actually sets out all the information in easy-read forms such as non-technical summaries, environment statements et cetera. You've got to make sure that they truly understand these things, because there are organised groups who can come forward and have very knowledgeable people. We've all been involved where you've got some very, very good people who come and put very good and logical, rational arguments for or against developments. But there are also many people who have sound judgement but are unable to really, truly engage in the process properly as a consequence of the complexity of it.

So, I don't think the legislation itself, whether it's secondary or primary, causes that issue—it's more, inevitably, the complexity of the planning process. And it will only be more complex for any project that's got numerous different regulatory regimes associated with it. And, being honest, even planners will find that a bit more challenging. There's a number of different regulatory regimes that won't have experts in. As Peter quite rightly said, planning is often the front door on these schemes. So, we will, inevitably, be trying to pull everything together, and that in itself demonstrates the complexity that we have to deal with, so it's always going to be quite difficult for a member of the public to engage properly because of that.

11:40

Thank you, Steve. I don't see anyone else's hand up, so, Chair, I'm happy—oh, I've got Peter.

Yes. I'll be quick again. I think the process is intimidatory because it's difficult to access—it's complicated, as Steve said, so I agree with that point. I think people want to contribute; they're keen to contribute to projects as they develop, and then they want to see what difference that's made; they want to see how a project may have changed, been altered, been amended through the process. They like to be heard, they like to be listened to, and I think a key part of that, and one of the statutory requirements, are things like pre-application consultation reports. Now, that happens all at the front end of the process, before the application is submitted, and I just want to see more effort. That front-loading bit is so important, to my mind, in the project's evolution and development, and that needs to somehow capture those changes that are made, and then I think communities and people feel much more heavily involved when they can see that, actually, their comments have led to that change.

So, what I don't want—and I don't think is right for the planning system—is where we just see these pre-application consultation reports put together and they're almost just prepared and put in and we tick a box saying, 'There you go, Steve. Thank you.' So, they're key, really. I think that front end is really, really important for the engagement bit.

There we are. Thank you. Answering in mime is allowed, I think, so we'll accept that from Steve. Okay. We've got about 15 minutes left and there's about three or four areas that we wish to cover, so maybe we'll have to be rather concise now as we draw this session to conclusion.

I just wanted to ask a couple of questions about the statutory time frames. Obviously, we've had mixed views as a committee about the 52-week statutory time frame, with some feeling that smaller projects risk being slowed down because maybe people feel, 'We've got 52 weeks to sort it out', and then, conversely, more complex projects maybe wouldn't be able to be dealt with in that time frame. Do you have views on that? Peter, first, then.

I think my view is that—it sort of follows on from what I've just been saying about the front loading. I think that stage in any project's development is key because when the application is submitted to the examining authority, that then starts the 52-week clock. So, I think all that early, upfront work, the front-loading bit, as I've been calling it, is essential. What the 52-week deadline might do is actually drive more of that front loading, because what I think applicants would hope the local planning authority is going to say in its local impact report is that the impacts are generally neutral or positive. So, that all requires us to invest upfront time working with the developer to make sure that we arrive at that perspective. We might have a difference of opinion here, but I'm less worried about the 52 weeks; I'm more concerned at what happens before the clock starts, before those 52 weeks. Okay?

Yes, okay. Just before we come to Steve, then, we have had a suggestion that there should be statutory time frames for each stage of the process, and that would include then validating applications as well. Do you think that's feasible?

Each project's going to be different, in my view. We might have common land affecting one project; it might not be affecting another project. We might have rights of way diversions affecting a project, but not another one. So, it's very difficult, in my mind, to actually put in standard timelines. I'm very concerned about—. As Steve said, we could spend all morning talking about resource and capacity. Now, whether there's something there around a validation process to set the bar reasonably high, to make sure the quality of submissions is good when they come in in the first place, I think that's the important bit. I'd be more probably concerned about putting deadlines in that tie local planning authorities in, or, as I say, the wider issue is local authorities generally. All our service areas, if we put those stricter deadlines in upfront, that would be a concern for me, because I just know how heavily intensive these projects are and the commitment and the pull that they have on the authority.

11:45

Yes. Okay. So, spending a bit more time getting it right upfront would then obviously bring benefits further down the line. Thank you, Peter. Steve, anything to add to that?

I mean, Peter's covered lots of it. I think the issue about front loading is a critical one and, generally speaking, it doesn't work properly in the DNS regime as it stands, because there's no real advantage for a local planning authority to engage, because we don't get enough money and we don't have the resources to do it. But, actually, I always say, on any application, particularly major applications, the quality and time you put in upfront, that makes a massive difference on the delivery. So, first of all, if you do it right upfront, you can say, then, 52 weeks, 'Why should it even do that?' Secondly, if things are done properly through the TCP regime for smaller projects, then it should be delivered quicker as a consequence, in terms of beginning to end of the process anyway. The third, as I say, the whole point of this is not really to do with smaller projects necessarily; it's about making sure we do it properly. But I don't agree with having specific targets for different stages of the process. I just don't think that's right. But I do think it's worth looking at ensuring that the developer's truly engaged at pre application with the local planning authority and the community. You know, the pre-application consultation process at the moment is all about community involvement, but, actually, it's not about involving the local authority. We check—[Inaudible.] I think, on truly nationally significant projects, there is possibly an opportunity to pull these things together, to make sure there is community engagement, there is proper, fully funded pre-application discussions with the local authority. Then, the local planning authority then have the opportunity to review what the public had to say on these big projects and consider that as part of the submission. So, there could even be some kind of local planning authority statement that comes in to identify what we've done at local pre-application stage, to understand the views of the community and to actually say whether or not we are likely to support the proposals. But, again, that can only be done if there's really true financing of the pre-application process.

Okay. Thank you very much. Right, we'll move on to Joyce then. Thank you, Joyce.

I'm moving from involvement by the community to scrutiny by all. A number of respondents are concerned that the Bill doesn't indicate what infrastructure policy statements will look like or require them to be subject to any kind of public consultation or scrutiny by the Senedd, and that is happening in Parliament at the moment. What are your views on that issue? Do you have any?

Yes, thank you. I think this comes back to community engagement and how can a community feel that their views have been taken into account, if they haven't had the opportunity to input into an infrastructure policy statement consultation. I think, at the moment, only 'Future Wales' and the marine plan are specifically listed, and then there's the opportunity for the Minister to establish further policy statements, but there's no reference to strategic development plans. I would have expected those to be listed as well. There may be elements of local development plans that it would be appropriate to give weight to in determining proposals, so I think much more clarity on this and a requirement for consultation would be very helpful.

Thank you. I agree with Sara on that point. Clearly, these are key policy documents for the decision maker, so they need to be prepared through consultation procedures. The extra point I would make, or an additional point I would make, is: when do they bite? So, in plan speak, when do they become material considerations, policies that need to be taken into account, and what do they apply to? Do they apply to the DNS projects that are already in the regime as well? So, I think all that needs to be made clear, because it could result in a complicated landscape. That's not new; that's the same position with any emerging policy. What weight does it carry, as it emerges, and what does it apply to? I'm not critical, I just think we need clarity.

The Minister told us that she isn't aware of any policy gaps and that, currently, no infrastructure policy statements are planned. But Kelvin MacDonald just told us that the significant infrastructure project categories of ports and radioactive waste geological disposal are not covered in policy terms. What are the practical implications of gaps?

11:50

I know Steve wanted to come in on an earlier point, so maybe, Steve, if you want to pick up on that as well.

Yes, thank you. Gaps are always going to be a problem, because any good developer or barrister can drive a cart and horses through those gaps. I do think, where there are those gaps, SIPs are likely to be pulled up by the infrastructure policy statements, which indicates, going back to the points Sara and Peter made in terms of the importance of appropriate consultation on those, that they need to be robust, and they need to fully engage all local authorities and indeed all stakeholders. And I think the main issue I can make for them is that the critical thing about potential IPS is that, if it's introduced without appropriate scrutiny, that in itself can actually undermine local policies that have gone through significant processes, to try and identify where and how and what development should be in different locations, and how you can determine the appropriateness of that development. But an IPS could effectively, and would, overrule those, and effectively give very little opportunity to resist. So, while it may well be that—[Inaudible.]—choose to do that, it should only do that following appropriate and robust consultation, to ensure that they have regard fully to local authority and other stakeholder views.

There we are. Okay. Thank you very much. We've only got a few minutes left, so I think we'll conclude with Jenny, if that's okay.

The Bill allows the examining authority the discretion to decide whether an application's going to be decided by a written procedure hearing or an inquiry. Some people like that discretion, others are concerned about it. What's your view? Steve.

I don't have a problem with the examining authority choosing that. I think the current regime in terms of one or other, or a choice of all different procedures, is about choosing the best and most appropriate way forward. So, I don't have a problem with that. I know part of the—[Inaudible.]—relates to it and determines and everything, and I think, ultimately, true national infrastructure projects should be dealt with by Ministers; they should be dealt with based upon the examination of evidence in whichever form it takes. So, I don't have a particular problem for that.

Okay. Thank you. Peter, I know—[Interruption.] Sorry.

Sorry, just before I'm muted, before we close, I did want to raise one thing, so if you could come back to me, Chair, just at the end.

Moving to Peter, you may want to add or disagree with something Steve has said, but I wondered if you could also address the point that some want Welsh Ministers to be the decision maker because they have political accountability, while others think the examining authority needs to be able to decide all the less complex stuff.

If I'm honest, I'm very open-minded about that. As long as the decision is based on evidence and considered correctly, it doesn't matter to me. I'm sure there are people out there who think—. It's Nolan principles this, as well, about transparency, so I can understand why Ministers are being suggested. Maybe speed of decision, it's quicker with the examining authority. So, I haven't got strong views on that one. It's no different to a planning application being delegated, in effect, to an officer to make a decision, versus a planning committee making a decision. I don't see the difference, just the different scale of application.

Just quickly coming back to the first question around the procedure that's followed, again, I'm like Steve, I'm open-minded about that. I think that the examining authority has to consider the evidence available to them. If they think they're lacking in evidence, then they will decide whether they need to hold a hearing, or it's more suited to obtain that and testing that evidence through an inquiry process, where it's being cross-examined. So, I'm happy that that's left. What I'm not so happy about is the cost resource for local authorities—

One further thing: in terms of if the decision really is for SIPs to be true national infrastructure projects, then I would have thought that those should be determined by Ministers. But I think, because you've got the optional thresholds, I would say that anything that's an option below those thresholds should absolutely be for the examining authority to determine, unless—[Inaudible.]—expectation that Ministers could still recover those should they feel that they wish to determine it. I think that would mean that that shows the appropriate bar, i.e what is actually mandatory, if the Ministers say anything below that might go through that regime should be dealt with by an examining authority, unless by an exception approach.

11:55

Okay. So, finally from me, your colleagues in Ynys Môn are arguing that they need to have the powers to object to a decision by the examining authorities if they think that way the way in which the examining authority has decided to deal with a matter is inappropriate. What's your view on that? 

I'll just start. I think we'd just fully support Ynys Môn. 

We're all friends.

The question is challenging me, in a sense. I'm trying to compare how we deal with planning applications, and which applications we deal with as officers and which are referred to planning committee, and we set that out in our scheme of delegation. And I almost feel like there needs to be a clear scheme of delegation here. So, the examining authority—. It's a bit like Steve just said, that there are dials set as to which applications it determines, but if—. It could be, as Anglesey is suggesting here, if a local authority raise a concern, that would have to built into that process to give the local authority a referral power to say, 'Actually, we want this looked over by the Minister before a final decision is made.' So, there might be another way of doing that that follows our local authority's schemes of delegation. Just a thought. 

Okay, and a final word to Sara, then, on this or any other reflections that you might wish to leave us with? 

Yes, thank you very much, Chair. One of the points that our members wanted me to raise in discussions was that whilst they really supported the principle of moving to the single consent, they were really concerned that it didn't allow for a watering down of any environmental protections, or any protections of national parks. And just a particular concern that these proposals would still be subject to habitat regulations assessments was a point that I was asked to raise. 

Yes, and that's certainly an issue that's been raised with us in written form by others as well, and no doubt will come up as we receive evidence from other groups and organisations. Steve, then—very, very last word. 

I always like the last word. Thank you very much, Chair. Enforcement we haven't talked about. It's one of the questions you've skipped over. I just want to mention here that I think, as drafted, it's unworkable. I think it's introducing for the very first time in Wales an actual criminal offence for a planning breach, which has never been done before. I don't necessarily have a problem with it, but the implications of that and how it works through—[Inaudible.]—unauthorised development, and the fact that the—[Inaudible.]—don't actually give the opportunity for LPAs to proactively seek to regularise a breach. It doesn't work. There's a lot of issues with enforcement. I think probably the best thing—I know that Newport mentioned it—perhaps I'll try and pull together over the next little while, if I've got an opportunity, some extra evidence for you because, ultimately, the Bill, in my opinion, will need changing to actually reflect the need to make it workable. That being said, I think we fully endorse what it's trying to do—[Inaudible.]

That's a very important point that you make right at the end there, so we'll certainly follow that up with maybe a discussion with the research team or clerking team, and certainly maybe a paper or a note would be very useful if that's possible. 

So, with that, can I thank the three of you for your contributions. We've heard some very clear messages in the last hour, which no doubt will help us in our reflections on the Bill. Diolch yn fawr iawn, thank you each and every one of you for joining us this morning. Diolch yn fawr iawn. 

4. Papurau i'w nodi
4. Papers to note

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