Pwyllgor Newid Hinsawdd, yr Amgylchedd a Seilwaith

Climate Change, Environment, and Infrastructure Committee

18/10/2023

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

Julie James Y Gweinidog Newid Hinsawdd
Minister for Climate Change
Neil Hemington Llywodraeth Cymru
Welsh Government
Nicholas Webb Llywodraeth Cymru
Welsh Government
Owen Struthers Llywodraeth Cymru
Welsh Government

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Elfyn Henderson Ymchwilydd
Researcher
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Lukas Evans Santos Dirprwy Glerc
Deputy Clerk
Marc Wyn Jones Clerc
Clerk

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 09:31.

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

The meeting began at 09:31.

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

Bore da, bawb, a chroeso i gyfarfod diweddaraf y Pwyllgor Newid Hinsawdd, yr Amgylchedd a Seilwaith yma yn Senedd Cymru. Gaf i groesawu Aelodau i'r cyfarfod? Mae hwn, wrth gwrs, yn gyfarfod sy'n cael ei gynnal ar fformat hybrid. Ar wahân i addasiadau sy'n ymwneud â chynnal y trafodion ar ffurf hybrid, mae'r holl ofynion eraill o ran y Rheolau Sefydlog yn parhau. Mi fydd eitemau cyhoeddus y cyfarfod yma, wrth gwrs, yn cael eu darlledu yn fyw ar Senedd.tv ac mi fydd yna gofnod o'r trafodion yn cael ei gyhoeddi fel sydd yn digwydd fel arfer. Mae'r cyfarfod yn un dwyieithog, felly mae yna gyfieithu ar y pryd ar gael o'r Gymraeg i'r Saesneg. Felly, cyn cychwyn, a gaf i ofyn a oes gan unrhyw un fuddiannau i'w datgan? Dim byd; dyna ni, diolch yn fawr iawn ichi.

Good morning, everyone, and welcome to this meeting of the Climate Change, Environment and Infrastructure Committee here at the Senedd. Could I welcome Members to the meeting? This is, of course, a hybrid meeting. Aside from the adaptations relating to conducting proceedings in hybrid format, all other Standing Order requirements remain in place. The public items of this meeting will be broadcast live on Senedd.tv and a record of proceedings will be published as usual. This is a bilingual meeting, so there is simultaneous translation available from Welsh to English. Does anyone have any declarations of interest to make? No; thank you.

2. Bil Seilwaith (Cymru) - Sesiwn dystiolaeth gyda'r Gweinidog Newid Hinsawdd
2. Infrastructure (Wales) Bill - Evidence session with the Minister for Climate Change

Iawn, ymlaen â ni at brif ffocws y cyfarfod, felly, oherwydd heddiw byddwn ni'n cynnal ein hail sesiwn dystiolaeth gyda'r Gweinidog Newid Hinsawdd ar y Bil Seilwaith (Cymru), a fydd, wrth gwrs, hefyd yn dod â'n gwaith craffu Cyfnod 1 ni i ben. Yn unol â'r dyddiad cau a bennwyd gan y Pwyllgor Busnes, mi fyddwn ni'n gosod ein hadroddiad erbyn dydd Gwener 24 Tachwedd fan bellaf. Mae hon yn sesiwn ddwy awr; mi fyddwn ni'n cael toriad yn y canol, yn rhywle, efallai o gwmpas tua 10:30.

Felly, gaf i estyn croeso cynnes i'r Gweinidog Newid Hinsawdd, Julie James, sy'n ymuno â ni ynghyd â'i swyddogion, Neil Hemington, y prif gynllunydd yn Llywodraeth Cymru, Owen Struthers, sy'n bennaeth cydsynio cenedlaethol, a Nicholas Webb, sy'n gyfreithiwr gyda'r Llywodraeth? Croeso cynnes i'r pedwar ohonoch chi. Mi fwriwn ni iddi hi yn syth; mae yna lawer iawn o dir gennym ni i'w gyfro, felly mi wnaf i gychwyn, os caf i. Rydyn ni wedi derbyn tipyn o dystiolaeth, a dweud y gwir, yn awgrymu does yna ddim digon o fanylion ar wyneb y Bil a bod gormod yn cael ei adael i ddeddfwriaeth eilradd. Nawr, mae hon yn thema gyson, rwy'n credu, onid yw hi, pan fo'n dod i Filiau o'r fath yma, ond mae yna enghreifftiau wedi'u rhoi ynglŷn ag ymgynghori cyn cyflwyno ceisiadau a'r gofynion o gwmpas hynny; mae yna enghreifftiau o gwmpas amserlenni ar gyfer penderfynu ar geisiadau ac yn y blaen. Mi ddown ni i'r rhain yn benodol yn nes ymlaen, ond y cwestiwn cyffredinol i ddechrau yw, Weinidog: i ba raddau ŷch chi'n agored i gynnwys mwy o fanylion ar wyneb y Bil? Os ydych chi, efallai, a oes yna rai meysydd rydych chi'n teimlo, efallai y byddech chi yn awyddus i weld hynny'n digwydd? 

So, we'll go on to the main focus of this meeting, because today we will be having our second evidence session with the Minister for Climate Change on the Infrastructure (Wales) Bill, and, of course, we will be bringing our scrutiny work for Stage 1 to an end. According to the date set by the Business Committee, we'll be laying our report by 24 November at the latest. We will have a break between the two sessions of this meeting at around 10:30. 

So, could I welcome the Minister for Climate Change, Julie James, who's joining us together with her officials, Neil Hemington, chief planner, Welsh Government, Owen Struthers, head of national consenting, Welsh Government, and Nicholas Webb, who is a lawyer with the Welsh Government? Welcome to you all. We will go straight into questions; we have a lot to cover, so I'll start, if I may. We have received a great amount of evidence suggesting that there is not enough detail on the face of the Bill and that too much is left to secondary legislation. This, of course, is a common theme when it comes to such Bills, but there are examples of this, including pre-application consultations and the requirements regarding those, and issues regarding timescales for deciding applications and so on. We will come to those in more detail later, but the general question is, Minister: to what extent are you open to including more detail on the face of the Bill? If so, in which areas do you think you'd be, perhaps, willing to see that happening?

Diolch, Cadeirydd. This is a difficult balance, because I know the committee has heard us saying this before: we want a Bill that sets out very clearly the process by which a piece of infrastructure will achieve consent and licensing, and we want that not to have to be changed all of the time because of changes in technology or practice or whatever. So, we need the certainty in the headline Bill of the process itself, and then we need any detail that we think is going to be subject to continuous change to be in the regulations. A conversation, of course, can be had about exactly where the balance of that lies. 

So, we have had a look at a couple of the things where we know you've been taking evidence, and, obviously, we're still speaking to all of our stakeholders as well. We do think that, for example, notification of decisions and the reason for decisions could be set out more clearly—so, making it clear that all relevant parties will be notified and what they'll be notified of. We think that that's not likely to change over the course of time.

On the other hand, we want to be very certain that anything to do with, for example, the way that the application process works, or the times or anything like that, needs to be in secondary legislation, because we think they are very volatile and subject to change over time. I'm really happy to hear the views of the committee on that. We're not set in stone on it. We know that the developers wanted more detail on transitional provisions, for example. I’m not sure they want that on the face of the Bill. I’m not sure transitional provisions on the face of the Bill are particularly helpful, but we can obviously provide them with more details of that, and no doubt the committee will want some more details themselves. But, genuinely, if the committee feels strongly on one particular aspect of it that we should include that, I’m more than happy to look at that.

09:35

There we are. Okay, well that's positive, thank you. Jenny.

I attended a stakeholder event organised by the Royal Town Planning Institute, and they all seem to be saying, 'What we want is clarity.' Because, clearly, they're going to invest a huge amount of money in making a successful application, and there is insufficient clarity, according to them. So, are there any things where you might be prepared to tighten up the clarity? Because what they want is, if we follow the rules of the game, the outcome is likely to be that we'll get what we applied for.

Yes. I think the clarity on the application process will be there, but it will be in subordinate regulations, because we want that to be able to change as time goes on. So, for example, there are still things on the statute book that say you have to give three hard copies into your local planning office, and send a fax. I think quite clearly that’s idiotic. So, what we want is something that’s very clear that can be easily changed as the technology or the detail changes. For example, yesterday in Plenary we were debating the legislative consent motion on the Levelling-up and Regeneration Bill, and that’s changed the language for environmental regulations. Well, if we'd put that on the face of a Bill, it would all be instantly out of date. If it’s in subordinate regulation, then we can just change it as we go. So that’s actually a very good living example of that happening in practice.

We absolutely accept that developers need absolute certainty for applications, as, actually, do all of the authorities dealing with the application. Because what we don’t want is a to and fro of applications, which we frequently see, with everyone arguing about what it should contain in the first place before it constitutes a valid application. So, we agree with that, but we think the best place for that is in the regulations. So that, to my mind, is a clear-cut decision.

But the process by which you—. An application needs to be on the face of the Bill, doesn’t it? The fact that you need to make an application, whatever that contains. So, I think that’s the split, myself.

Okay, and we'll be drilling down into some specifics, obviously, as we go along. Thank you, Jenny. Huw.

Diolch, Gadeirydd. Good morning, Minister. I want to turn to the aspect you touched on, which is transition. You'll have seen the evidence that we've heard, where there's been a real call for clarity on the transition, so that developers who are currently out there, and other stakeholders as well, can absolutely see what choice they make, whether they continue on the path that they are on or whether they go through to the new one, and things that are currently in application at various stages, how do they have clarity that they won’t get bogged down in some transition? So, what can you tell us? You’ve already said that you don’t want to put all of that on the face of the Bill, so how are you going to give those developers and others clarity on the transition to this new regime?

Again, we think the transition arrangements should be in the regulations, so that we can make sure that they’re fit for purpose and also so that they don’t clutter up the Bill into the future, when the transitional arrangements are finished. We need to make sure that the switch date is really clear, so everyone needs to know what happens to things that start now, but the new Bill comes in—I don’t know—a third of the way through. So, we need to give real consideration to at what point does the switch actually occur, and we need that to be absolutely clear. We’re in the process of going through with various stakeholders—the planning authorities in particular, and others—at what point after the Bill, presuming the Bill gets through the Senedd, that will actually happen. So, we know that there are development of national significance applications in train at the moment, for example.

Yes, yes. How soon do you think, subject to the Bill going forward, how soon after the publication of the Bill will you be able to produce those draft regulations—clarity—so that developers can decide which way to go?

Yes, certainly. So, those conversations are taking place now.

We are talking to developers and local planning authorities about how they would want the transitional provisions to actually work in practice. I think, as a matter of principle, where things have started, if you like, the statutory part of the process, and an application has been submitted, I think probably the most appropriate route is for that application to carry on through that process. The question mark is about the ones that are in the pre-application stage at the moment, and which process do they follow. Of course, we need to remember that some of the consenting processes that we have at the moment don't actually have formal pre-application stages, so there's a question mark about how you transition one of those into the new process, potentially, if that consultation hasn't taken place, or if that consultation's taken place in a different way, and whether the statutory consultees are happy for their comments to be carried across.

So, it's a very, very complicated picture here that we're trying to work our way through, looking at multiple consenting regimes and multiple stages within a process. It probably explains why we can't really put it on the face of the Bill too easily, because there are about as many different pathways as there are applications. That's the principle we're trying to follow, but I think if stuff has started in—

09:40

It's good to hear that it's well under way in the discussions, but, clearly, there are some loose ends to tie up there. Tell me: are you seeing a rush of applications to get beyond the pre-application stage? Are you picking up that there are developers saying, 'Right, we'd better get beyond that milestone'?

So, there is a strong pipeline of applications, and I think it's fair to say that's been driven more by what we see with the energy crisis than trying to get the other side of a consultation process. A lot of the elements of this process, as we know, are very similar to the DNS system. So, there's going to be a very smooth transition, I'd argue, between applications on land going through the DNS system and this system. There'll be a lot of familiarity between the two approaches. But, yes, there is a strong pipeline at the moment. It's quite a lot of solar and wind proposals.

Solar and wind—interesting. Just one final question on this. You mentioned there the pre-application aspect. Are you in a position at the moment, or are you still bolting this down, as to whether, if you have pre-application consultation work done under the current DNS process, that would be valid for a significant infrastructure project application, if it was carried out before any cut-off date? 

So, that's one of the areas we're looking at.

Just to say, just from a lay person's point of view, a lot of it will depend on whether the information is translatable, if you like. So, if in the old process the stuff that you produce looks very like the new process, then, clearly, that's all right. If it looks nothing like it because it's a completely different licensing regime or, I don't know, a harbour revision Order or some whatever, then the likelihood is it doesn't translate. So, I suppose the next question then is: is it worth everyone redoing everything in order to get it into the new process, and at what point do you make that decision? So, they're not easy things to decide, really.

And just—. Sorry, I said that was my final one, but on the basis of what you're saying, Minister, will that be an objective decision or will it be a subjective decision for planning officers to decide in concert with developers, to say, 'That looks pretty much like it streamlines in, so you can go into the new one'? Is it subjective or objective?

So, I think it's going to be subjective to a degree. So, I think as we get closer to the implementation date, those sorts of conversations are going to become more real. We're some way away from implementation and introduction of the system at the moment. So, it depends on where it falls in that development cycle. If you're fairly near the end of that cycle in terms of submitting an application, I'd expect to see that continue. If you're only at the beginning, you may make the commercial decision to wait for the new system, particularly if it gives you things you cannot get now—compulsory purchase, or something like that.

And realistically, those conversations will be going on now, because certainly developers of any size will be keeping an eye on this going forward, and they'll be having those conversations—

Yes. They absolutely are tracking this. Actually, we are as concerned, though, with the stakeholders the other side. 

So, what's their view of having to redo all of their comments, and all the rest of it. There's a real capacity issue there. And also, most of these things are pretty straightforward, but it would be just our luck, wouldn't it, if one that we hadn't had for 20 years suddenly appeared over the horizon. So, you'd have to take a view, wouldn't you?

That's really helpful, Minister, because, certainly, those stakeholders with their lack of capacity, if we were to say to them, 'Jump through the hoops again', that could be a major issue. So, will there be any—? Are you anticipating that you will need to give any guidance to local planning officers, but also to Planning and Environment Decisions Wales, to actually say, 'Take into account, when you're making a balanced decision on whether this is going into the new regime or can continue, the impacts on those stakeholders'? Is that something you'd consider?

It's something we'd consider, but I think we've got to remember that the vast majority of these applications are going through the DNS process, and the processes are very similar. So, we're talking here about the exceptions rather than the norm, I think. 

09:45

Okay. Thank you, Huw. And of course, all of this will come in secondary legislation. I suppose it illustrates the difficulty we're having in scrutinising what the landscape will look like as we deliberate the merits or otherwise of this Bill, but there we are. Okay. Diolch. But that was very useful, thank you. Janet.

Thank you. Good morning. On resourcing, we've heard from numerous witnesses that the new system set out in the Bill will only function effectively if all parties involved in the process are properly resourced, both in terms of funding and having the right skills and expertise in place—local planning authorities, statutory consultees, PEDW. How will you ensure that the whole process is adequately resourced?

We expect that the new regime will need a little bit more resourcing at the beginning, as people get used to it, but the regime is more streamlined than before, so we think that once it's up and running, it won't take up any more resource than is now taken up, and if it works effectively, it might even take slightly less resource—that's kind of the point. So, statutory consultees, for example, will be responding into a single process rather than a licensing and a planning process.

But, absolutely, Janet, there will definitely be more resource required at the beginning, so we'll be doing a whole series of training and guidance. We're already very involved with all the professional organisations; Neil and his team meet very regularly with all the professional organisations, to get the transition to the new regime up and running. But, yes, absolutely, like all new regimes, at the beginning people won't be familiar with it, and it will take a bit more resourcing. But kind of the whole purpose of this is that it's streamlining the system.

And bear in mind that these are all applications. This isn't going to produce more applications; these are all applications that are already in the system, or that would have come into the system, so the resourcing would have been necessary anyway. So, I really genuinely do think that, once this is up and running, it will be a simpler and more straightforward process for all of the consultees to put their opinions into, and we'll be able to help that, and the same for PEDW, actually, because it's a more straightforward process.

Okay. Now, local planning authorities say that, based on their experience of the current DNS process, they don’t believe they’ll be able to recover the full cost of their involvement in the new process. For example, this includes specialist input into local impact reports and any enforcement action. Do you agree with their assessment, and how will you ensure that LPAs and statutory consultees can recover their full costs?

We're very committed to full cost recovery—I don't see any reason why the public purse should be subsidising developers of this scale. So, what we're currently doing is working with all of our various organisations to make sure that all of their costs can be captured in the cost recovery process, so that we understand on what basis they're assessing their costs and how that translates. We haven't finished that piece of work, it's ongoing, but we're very committed to full cost recovery.

Thank you. Energy developers have told us they’re willing to pay higher fees in return for a guaranteed level of service from LPAs and others. How will you work with developers, LPAs and others to optimise the fee structure for the new process?

So, it isn't just about the level of the fees, is it? I'm smiling because one of the conversations I have with developers all the time is that it's no good them complaining to me that the local planning authority is going slowly when they've just fished three of the local planners out of the planning authority to work on their application.

So, this is about understanding what the system looks like. We are going to have to do a lot of work to help the planning authorities maintain their skills and expertise—this isn't the only area of local government that's been hollowed out over the last years. So, we are working with them. Neil and his team have been working with them a long time, to make sure that we have a proper planning careers structure and that the local planning authorities can hold on to people. You know as well as I do that, once the public sector pays around 20 per cent less than the private sector, it's really difficult to hold on to people, and that's right across all public sector organisations. So, we work, and Neil in particular, and his team, work with people to try and make sure that we have a robust profession.

Can I just say that it's not just the planners? So, local authority lawyers also suffer from this, building control does, environmental health does—it's quite a lot of professions that have been hollowed out over austerity, and we have a problem with that, there's no doubt. But I do make the point to the developers all the time that if they continue to fish out everyone five years qualified and over from the local planning authority, they're driving their own problem. 

The National Infrastructure Planning Association has suggested that a central specialist advice unit could be beneficial to public bodies and examining inspectors when specialist issues arise. Do you agree that such a unit would be beneficial, and would you consider establishing one to support delivery of the new consenting process?

09:50

Right. So, yes, I think there probably is a future need for specialist advice. Colleagues around this table will be very familiar with the arguments over the years about whether we should have regional teams or not. It tends to be the case that the officers in question think that's a good idea and the politicians in question think it isn't a good idea. I continue to have long conversations with the WLGA and others about the establishment of regional teams. At the moment—slightly aside to this discussion, Chair, if you don't mind, but you'll see the point—we're talking to them about putting a strategic regional planning process in place. Now, to my mind, it is a no-brainer to do that from the CJC arrangement and to put a regional team in place. That, I'm afraid, is not the view of a very large number of our local authorities. So, we continue to have this dialogue. I'm not sure that a specialist team held by the Welsh Government would be particularly effective, because you'd have to get them to use it. So, we continue to have that conversation.

So, with the CJCs, it's the politicians rather than the officers that are blocking—

I don't think that's any surprise to anyone, by the way.

Yes, it's only a small supplementary, and it may seem as if it's not pertinent to this Bill, but it is. The Welsh Government has, I think laudably, got a very pro-onshore wind policy, and it's mapped out where it should be. We also now see the dawn of potential massive expansion of offshore. I spent the summer visiting some of the areas that Joyce will be very familiar with, speaking with some of the wildlife groups—and this is to do with cost recovery. There's some good work going on where energy companies are already funding some research work into migratory birds. But the accumulation of onshore and potential offshore now suggests to me, when you couple this with the impacts of bird flu and you couple the impacts of climate change and so on, some of these precarious species perhaps deserve a little better. Do you think it's time, in terms of cost recovery, to say to these players, many of which are big energy companies, 'It's time to actually put together something cohesive that is not piecemeal, but actually a well-funded, comprehensive piece of analysis of the impacts of wind turbines, onshore and offshore, on migratory species?'

Yes. I think we all agree with that. You may remember that we had a bit of an argument with the UK Government over their Energy Bill and the way that they want the compensation to work for environmental impact, with which we still don't agree, by the way. So, yes, we absolutely do think that that should be paid for. One of the actual issues, though, Huw, is the data—

But not on a piecemeal basis; actually something more comprehensive.

No, but the data collection is one of the issues. So, the whole issue about floating wind, for example, is we don't really know how that's going to—. We'll want to, on the precautionary approach, start small and collect the data. We have this conversation with the Crown Estate all the time. If you have data coming back that says that this is in the wrong place, what are you going to do about it? So, this is an ongoing conversation, in a new technology not yet proven anywhere in the world.

You're exactly right. But it's really interesting that, I think, I'm picking up a signal from you that if the wildlife organisations, together with discussions with developers, were to say, 'On top of the piecemeal stuff that we're doing,'—which is very welcome—'what we need is a comprehensive look at this, and here's what we'd like to see happening', we seem to have the support of the Welsh Government to say that's a conversation that should be happening now.

If I just outline the discussion we had last week, so, last week we were having a discussion with Net Zero Wales about how we can accelerate deployment, and one of the discussions there was whether we can take a more strategic approach, using them as a position between us and the developers, to actually start to look at a strategic approach to some of this environmental information. There's always going to be the need for the very locally specific, relating to a particular scheme, but because of the lack of noise around some of this species, particularly offshore, and how they migrate, there is a piece of work that could be done on a more strategic basis, which would have the benefit, potentially, of speeding up the consenting process at a later stage as well. So, those strategic approaches are starting to emerge now.

Good. But it's purely cost recovery I was going to ask about. That's really interesting, because Joyce and others will have other questions on this. But, on cost recovery, you're saying it should land on those who are bringing forward the projects—say, the Crown Estate.

09:55

The tool we were discussing was the use of planning performance agreements. So, there is an established tool there where developers can contribute towards that agreement and it can be used to fund the sort of research that you're talking about.

Okay. I have both Jenny and Joyce wanting to come in, so, very briefly, and I'll take you both together, and then maybe you can respond to both at the same time.

So, would you envisage that the developer would pay into a fund and somebody else would do the research? Because I think we all acknowledge that there are lots of unknowns about offshore wind, but it's expensive to do research and we don't want to be reinventing the wheel just because another similar project is happening down the road. How does this Bill clarify the sharing of information that's not commercially sensitive?

Can we just hold that thought, and we'll take a question from Joyce as well, and then we'll respond to both at the same time?

Mine is in a similar vein. Who holds the data? What are they looking at? And, can we be assured, in terms of satisfying everybody, that that data really answers the question, rather than going in the direction in favour of and supporting a large-scale application while ignoring what we're really after, which is the effect that may be on the environment? It has to be supported by everybody, and, I would like to add, particularly in the sea. I know I'm moving on, Chair, but this, I think, is a good place to do that. We talk about the hierarchy, it seems, of applications, and the sea is what we're talking about, so the precedence here seems to be more in favour of infrastructure projects, rather than—. You know, there's a whole balance here, isn't there?

That's right, Joyce. So, just to set the scene—I'll let Neil answer some of the specifics—the first thing to say is that this Bill is not an isolated thing; it sits in a raft of other legislation. So, it sits alongside the Environment (Wales) Act 2016 and the Well-being of Future Generations (Wales) Act 2015 and a whole series of other things. So, these developers are also going to have to produce the environmental reports in whatever format that they need to produce them in for the various things that they do. They will have to fund that, they will have to say what the impacts are and all the rest of it. That's outwith this process, but this process sits alongside it. So, that's the first thing—we're not abolishing that, but just bear in mind that this isn't an 'every single thing you need to do' Bill, either. So, that's the first thing.

The second thing is we've had long conversations with the Crown Estate about the way that they let the lots for the Celtic sea in particular, and about what the data collection obligations in that are. That is an ongoing discussion. It's a balance between what the developers regard as their commercially sensitive information and what is necessary for us to understand the impact that they're making, and so on. So, that continues to be an ongoing conversation, and I'm not sure that we've got to quite where we'd like to be on that, but it's a conversation that we continue to have. And then there is a whole pile of specifics, which I'll let Neil answer.

I think the main question is 'who collects the information?' and, in principle, if we're using a combined approach where information is being collected across a number of schemes, that can be done by a third party. I think we've got to remember the key role that Natural Resources Wales has in all of this, because they're going to be the go-to people to verify that information.

The other thing to remember as well—and we are starting to do a lot more work in this area—is, if you like, the post-construction monitoring, because it's all right to predict and look at what's there, but it's understanding what's happened after the development has been put in place. So, at the moment, for example, we're doing a little piece of work with Arup, looking at post-construction monitoring on the Gwent levels. On the Gwent levels, there has been a solar farm and other developments. Has that enhancement that has been put in as part of those schemes actually happened or not? So, you've got a very strategic level of sifting, some of which takes place, at the moment, through the Crown Estate. We can build on that. There's going to be the local detail, which developers are still going to need to produce because they're going to know exactly where their floating wind is going to be anchored, for example. And then there's the post-construction monitoring, and the key body in all of this is Natural Resources Wales in terms of verifying that information.

Okay. So, before we move on from resourcing, then, just for clarity, Minister, what you're saying is that your intention is to ensure that the scale of fees is high enough and sufficient enough to ensure that local planning authorities and other statutory consultees will have full cost recovery.

10:00

Just to say, I suppose, we're still in discussion with them about what the methodology should be to ensure that they've taken everything into account in setting those fees that ought to be taken into account.

Thank you. I just wanted to look at some of the definitions of categories. First of all, some of our early witnesses were saying that, whilst we're talking about significant infrastructure, we then refer to something that means a significant infrastructure project. My definition of 'significant' might be different to somebody else's. So, I just wondered why you haven't elaborated a little bit in the Bill on what we regard as significant in relation to the climate emergency or anything else that you might want to.

The term 'significant' will become what the lawyers call a 'term of art', so it'll have a specific set of things associated with it, and so you won't be able to just decide something's not significant because in your head it isn't. There'll be a whole body of stuff that goes with it.

Right. So, why not put it on the face of the Bill if the lawyers have already got a way of doing it?

Basically, we already have that. We have developments of national significance now, so there's a whole set of criteria that would allow you to say what is or isn't significant. Sometimes there are things that are marginal, so we're asked to call things in in the current regime, for example, because somebody will argue that this has more than local significance. They clearly think it does, and we sometimes agree and sometimes we don't agree, so it's a little bit of—.

The Bill itself is about defining what we mean by 'significant infrastructure projects', so there are categories within the Bill that define those. We can discuss whether they're the right categories or not, and we've obviously heard that some bodies think there are additional things that should be included. For the situation the Minister was describing, there may be things that fall below the threshold, are novel, and they are things that we could direct as significant infrastructure projects. It may be the location, it may be the fact it's novel, and they would then follow this process. So, we think we've captured the significant infrastructure projects that are out there at the moment. That's not to say—. New technologies will come along in the future, and that's why we have the ability to add categories using secondary legislation in the future as well. We think we've captured most things. If there are things that people feel we should include, we need to hear them.

Okay, so let me keep going on that front. It's been highlighted to us that alteration or improvement of a highway is a SIP if, amongst other things, it's likely to have a significant effect on the environment. Who is going to determine that that effect is significant without going through the examination process?

The highway one is an interesting one, actually, because the current rules, we think, are quite restrictive. So, they're about linear—I can't remember off the top of my head—15, I think it is, hectares for a motorway and slightly less for an A road, but, actually, that doesn't capture what its impact is. It could be considerably shorter than that and have a much higher impact; it could be longer than that and have very little impact. As Neil just said, it is very much about location. So, I'd argue that if it was 5 hectares but it could be going across a site of special scientific interest, then it might have quite a significant impact. On the other hand, it could be an existing brownfield site, which was fine, and hadn't got much impact, probably. So, it is a little bit horses for courses. What the Bill has is guidance around that, and then there is an opportunity for us to take a different view in particular cases, because, as Neil says, it's novel, the location is sensitive or some other factor comes into play that means that we think it has got more than local significance.

So, how will the putative applicant be able to discover whether or not their proposal is likely to fall into this significant category, because, otherwise, they're going to say, 'Oh, well, I just can't be bothered, because I don't know.'

You've got to remember that a lot of these projects or most of these projects are going to require an environmental impact assessment as well, and one of the tests around that is whether there are significant environmental effects or not. I would be very surprised if any project that requires an environmental impact assessment does not fall within this SIP category. When you're doing the screening process at the start, that's when you would come to the conclusion that actually, this project can have a significant environmental effect, and needs to follow this process.

10:05

So, any putative applicant can assume that if they're having to do an environmental impact assessment, it's going to come into this category. 

I would say so. 

Thank you for that clarification. Some witnesses, for example the Royal Town Planning Institute, questioned why the production and transport of hydrogen wasn't included, and Wales & West Utilities were saying the ommission of pipelines and gas storage are significant oversights. How would you resolve these points that they're making, in that obviously, they're seeing it through the lens of the types of activities they're going to—

Can I just back you up to the last question? I think it's important for the committee to understand as well that the developer can ask for it to be treated as a development—

Yes. So, the developer themselves can think, 'Oh, actually, do you know, we think this is quite a big deal, so we want it to be dealt with'. So, just for the complete picture.

The hydrogen thing is quite interesting. I don't know if the committee has seen that there's just been a thing from the Government's advisers about hydrogen in the gas network, which has changed the direction of travel for the UK Government, and I think that's quite an interesting thing. Hydrogen, I think we'd say, is an energy carrier, so it's captured, so it depends on your definition, doesn't it? We think it's probably captured by the Bill. If it's used to produce electricity, it's captured by the Bill, because it becomes a generating station. So, how is it not captured, I suppose, is the—. 

I think that's clarified that. They will have heard it.

We have a long and porous border with England—

Sorry, Jenny. Just on that point, even though hydrogen isn't specifically named, your interpretation is that if it's transported in pipelines, or it's energy generation, it is captured.

It may be. Hydrogen can be used in many different ways. In some ways, it might be related to a wind farm. It might be an associated development with that. It might be as part of an existing industrial process that is considered through town and country planning. So, there are some problems around definitions. 

So how does the Bill help in giving clarity to wider stakeholders as to whether it's captured or not, or other semi-novel technologies, or semi-novel applications of existing technologies? How does somebody looking at this, or any guidance related, know?

So, what are we trying to do? Who is it that you're worried about in that scenario? So, somebody who's trying to produce—

Yes, but if somebody who's trying to produce hydrogen, or a local authority has somebody trying to produce hydrogen, they're going to produce hydrogen, and there are only two ways of doing that currently; they're going to attach it to a fossil fuel generator of some sort or they're going to attach it to a renewable energy generator of some sort. Both of those would be captured. 

Are they going to produce it as a byproduct of something else? Well, that would be consented through whatever the something else is, so it would be captured. And what I was trying to say is that it's very hard—. We can't think of a scenario in which you're producing hydrogen where it isn't already captured by some—. You know, unless there's some kind of novel thing, in which case we'll have to have some regulations put through saying, 'Goodness me, somebody's thought of a different way of doing it', I guess. But at the moment, how would you do that, where it doesn't fall into one of the current—? That's the point I was trying to make, really.

Thank you. That's clear enough for me. Just going back to the porous border with England, RenewableUK Cymru and Solar Energy UK—obviously big players in this field—are pointing out that they think that the 50 MW threshold should be measured using—I'm applying my notes here—the inverter rating, AC, and not the DC rating. I understand that the Secretary of State has agreed with that in relation to nationally significant infrastructure projects. So what would your position be in terms of alignment with the English regime? 

We don't have a position on that at the moment, Jenny. We need to have a proper look at what that actually means in practice. There are a whole pile of complexities there around just what exactly does that mean in practice. I'll be absolutely upfront with the committee—we don't know the answer to that yet, we'll have to have a look at it. 

10:10

But that would potentially mean, then, a change to the Bill at Stage 2 or 3. 

It might. 'We don't know' is the answer to that. 

I think the important thing is we need to think about not just what the numbers mean, but what the impacts mean. So, if we're talking about potentially moving to 70 MW, that means that the solar farms are much larger, and that means that, obviously, they have a much bigger impact. We need to unpack what's being said here and to understand what it means in practice. 

Thank you. My last question was to do with whether applicants can opt in to the SIP regime, and I think you've already answered that. 

Thank you. A number of witnesses have said that policy should clearly express national needs for infrastructure, as in the Planning Act 2008 system, and that Future Wales and the marine plan are inadequate in their current form to be the principal policy documents to accompany the new consenting process. Some have suggested a suite of new infrastructure policy statements would be more preferable. Would you consider revising how you envisage the planning policy framework that sits around this Bill?

We, very clearly, believe in a plan-led system of holistic documents. I don't think having a whole set of different documents for each particular theme is a good thing at all. We think that we've got a decent framework here. We've got the national development framework, 'Planning Policy Wales' and the marine plan. That's a good set of documents for significant infrastructure projects. 

I just think if we create another set that slightly overlaps them, you've got all kinds of complexities pushing into the system for no reason. If we needed a new planning policy for this, then we have a mechanism for adapting our current planning policies for that. We could look to update them in the first instance, but we don't have any plans to do that at the moment; we don't think it's necessary. If it turned out to be necessary, then we have a mechanism to do that. The idea that we need a whole new set of stuff I just don't think is right. 

Neil or Nick—I'm not too sure which—will have to help me on the hierarchy of the decision-making framework; it's quite complicated. But the wording in the Bill needs to be carefully considered, so that we've got the hierarchy right, so if you're making a decision, what do you need to take into account and in what order, basically. But I'm going to ask colleagues to help me with the detail of that. I don't know which one of you wants to do that. 

That's fine; I'll start. I think we've got a long history in Wales of having a holistic approach to planning policy. 'Planning Policy Wales' has been an integrated document now since, actually, just prior to devolution. So, we've done it in that way. It's very, very beneficial when you're looking at things like how you ensure that you embed the Well-being of Future Generations (Wales) Act 2015 into that. It's more difficult to do it when you're looking at thematic policy, and we've moved away from that for that reason.

So, that's the approach we've taken. The Scots have done the same as well, and, latterly, England have done it as well. I think, in England, the national planing policy framework postdates the actual policy statements that they have for infrastructure. So, whether they were doing it in a different way now, I don't know. 

A holistic consideration of policies is our preferred way of doing it. It means you can look at social, economic, environmental alongside. We think we have the policy framework that allows us to do that. I haven't come across any DNS applications where we haven't got a policy basis to make decisions, for example, although, saying that, if something novel comes along, we may need a policy statement to address that gap. But we don't see any at the moment. 

If I pass over to Nick, who'll speak a little bit about the hierarchy and how that works, and how we're looking to, potentially, change that. 

Currently, as the Bill is drafted, if there was any conflict between the policy statements and the NDF or the marine plan, then the policy statement would have precedence. We are re-examining that, given the work that goes into the NDF and marine plan, and the purpose of the policy statements as we see it. That's being reconsidered at the moment. 

Not necessarily flipped, but there wouldn't be that hierarchy; it would be a planning decision being made on which one has precedence rather than the Act saying which one has precedence. 

So, how would there be clarity around which one has precedence?

It would mirror the way the planning process works at the moment. You would be looking at the plans, but you would then take into account all other factors to come to the planning balance. So, in the case here, you'd have an inspector providing a report that considered all of those factors and then produced a recommendation for the Minister. 

10:15

So, it might be different depending on the merits or otherwise of each individual application.

And the impacts of that application.

Sorry, yes. Okay. Janet, and then we'll come to Joyce.

As you know, we’ve been calling for quite some time now for the marine plan to be based more on a spatial element. Others have raised this with us, specifically on the marine plan. The Marine Conservation Society is concerned about the designation of the marine plan as the primary document, because unlike 'Future Wales', it doesn’t include a spatial element to determine where development is most sustainably located, and it picks up on the point that you made earlier, Joyce. Do you agree a spatial expression in policy is required to give the certainty on need for decision makers?

No, I don't really agree with that, Janet. I don't disagree that it would be beneficial to have a spatial element in the marine plan. Separate to this process, we are working in another part of the Government on a set of policies that might begin to look like more of a spatial policy in the marine environment. But we’ve got to a Welsh national marine plan and that’s the statutory plan, so that’s the plan that would pertain here. If we start to develop a series of things that might look a little bit like the technical advice notes that you’re familiar with in a marine environment—we haven’t quite decided this yet, but there’s some work under way in the marine part of my portfolio to look at this—then they would act the way the TANs do, so they would act as advisories, effectively. We think that’s fine.

Outwith this Bill, and just for the committee’s information, really, I don’t personally think it’s worth taking people off doing the actual work in the marine environment in order to produce a spatial plan, which is what we would have to do. So, judging by the amount of time it took us to put 'Future Wales' in place, that would take a considerable amount of time, and there is work to be done right now on things in the marine environment that I don’t wish to see delayed. We’ve just prioritised doing other things. I’m not disagreeing with you that eventually a full spatial plan would be good. But, for example, we’re currently working on what the new marine conservation zones might look like, and there will be some policies for some elements of spatial work coming out of that section. But in terms of how they then interact with this Bill, they’d effectively work like the TANs do, so it doesn’t need to be put in place in advance in order for this to work.

Moving on from what you just said, Minister, this is all going to be about timing. You said there's current work going on looking at marine conservation and, at the same time, we're driving through a new Bill and we've had the question about hierarchy. In terms of timing, how is all this going to fit together? Because I think that's the concern here—that the work that you've just discussed and given evidence to us on is being undertaken at the same time that a new Bill is coming forward. The question is pretty obvious—it writes itself: how can we give confidence to those, particularly the Marine Conservation Society and others who are concerned about usage, that we are fully apprised of what we need to protect before we start?

That's a very good question, Joyce, but nothing is set in stone ever. So, of course, as we speak, right now, we are working on updates to the TANs, for example. That is a continuous process. As things happen, a new TAN will come out. Everyone knows that we are currently in consultation about the new TAN 15, for example. There are other TANs that are currently being looked at. I like the TAN process; it allows us to put those kinds of policies out on a rolling basis without having to fundamentally change the Acts that underpin them. And so, what this will become is an underpinning Act, and it will allow that process to continue without having to continuously have primary legislation in order to give effect to it. And actually, my own particular view—this isn't the Government's view, just for a moment, but I'm the Minister in charge of it, so probably influential—is that I think the TAN system works very well, and if we could get something similar to attach to the marine plan, that would work well, too, rather than have to pause while we do five years' work to get a full spatial plan in place. 

If you just look at the terrestrial planning system, we've done that the wrong way up, in my view. It would have been great to have had a spatial plan in place and then do the regional strategic plans and then do the local development plans, but in point of fact, we had the LDPs in place, we then put the top plan in place and now we're going to put the middle one in place. Eventually, we'll have the hierarchy in the right order. But the idea that you just don't do it until you've got one of them in place just doesn't work in the real world, does it?

10:20

So, before we come back to Janet, just to conclude on this area, much of the evidence that we've received has flagged up to us that 80 per cent of the noise around these major planning applications is about whether this meets the policy intent, whether it's the right approach in terms of energy generation, let's say, as opposed to the merits of the actual application itself. So, the concern is that the ambiguity—maybe that's too strong a word—of the NDF and the marine plan, in many respects, just flings that door open for more of the same, really, which is where I thought we were trying to move away from in terms of creating a more streamlined system. 

So, we think that we have a statutory plan, the Welsh national marine plan, in the sea, and we have a statutory plan in the form of the national development framework on land. In any planning lawyer's terms, in the inspector's terms, those are definitive documents that form the policy basis. So, if you put a planning inspector in front of you, that planning inspector will tell you that they are absolutely certain what it is they're applying and why and how, because those documents are there, they make quasi-judicial decisions off the back of them all the time, they hold up in courts of law. Welsh Government is continuously reviewed all the time by everyone, so we know they hold up; we know that they hold up in appeals and so on. So, they work. I suppose the process I'm telling you about is how we keep them up to date.

Yes. Sure. Okay. Very briefly, Huw, and then we will come back to Janet.

Yes. This is what I'd like to ask, because I regard myself as reasonably well up to speed with what the planning framework is within Wales, but if I just pick up one example, because you mentioned TAN, and this is why it set me off. So, TAN 8, which used to be the windfarm directive, was superseded in 2021 by the 'Future Wales' document, but alongside it sits planning policy 17, which is the mapping of windfarms. TANs don't exist any more now for windfarms, do they, or am I missing something? And if I'm confused, heaven help any member of the public. 

Okay. So, what we've done is, where there are policies that have a clear spatial element, like the strategic search areas, as they were in TAN 8, they have been transposed and moved across, refined and looked at again in the NDF, which is a spatial plan. So, TANs tend not to be spatial documents in the land-use planning world any more. So, that's where you go. We did, remember, look at whether we would have a spatial approach to solar farms. So, we consulted on that basis, but the message that came back very clearly from the industry was that it's much more of a universal application or potential for solar, so we don't need an area of solar farms mapped. So, we have criteria we assess them against, rather than a mapped spatial approach.

So, there isn't a TAN for wind. Does policy 17 for wind, the pre-assessed areas for wind energy, still stand, or has 'Future Wales' superseded that?

So, the pre-assessed areas are within 'Future Wales'. 

Yes. And we could have a whole debate about the merits of the Arup work and everything, but we won't go there; we've been there before. Thank you. Back to you, then, Janet, to conclude this section.

Thank you. So, we've received evidence expressing concern about the specific provisions for infrastructure policy statements in the Bill. Now, these include the fact that they would take precedence over 'Future Wales' and the marine plan, but are not subject to Senedd scrutiny, as is the case with 'Future Wales'. If infrastructure policy statements were to remain in the Bill in their current form, would you consider making them subject to a formal Senedd scrutiny process?

10:25

I suppose the short answer to that, Janet, is that I'll be very interested in what the committee thinks of that. Infrastructure policy statements are done on the same basis that all Welsh Government processes for the preparation of policy documents are done. They will go through the same process, indeed. They're for novel cases where existing policies documents can't be readily updated, so we think there will be exceptions. They'll be subject to all of the consultation engagement, the sustainable development principles and the well-being of future generations five ways of working that we always do for all of our policy documents. But if the committee feels strongly that there is another process that is required, then I would be very interested to hear what you think that is. At the moment, we'd follow the same route as we have just described for updates to 'Planning Policy Wales', because they'd be regarded as an exceptional piece of planning policy in circumstances where we can't readily update the current ones. But genuinely, if the committee thinks they require more detailed scrutiny, given what they are, then I'd be really happy to hear from you.

Excellent, okay. Thank you for that, Minister. I think we've given a decent amount of time to an important aspect of the Bill there. We're moving on to another important aspect, which is community consultation, but I don't want to rush it, and I am aware that Members have been promised a break part way through, so maybe we'll break now, if that's okay, and we'll reconvene just before 10.35 a.m., so that we can go back into session at 10.35 a.m. on the dot. And if you know me, I'm a stickler for those kinds of things. So, we'll pause and we'll reconvene for 10.35 a.m. Diolch.

Gohiriwyd y cyfarfod rhwng 10:26 a 10:36.

The meeting adjourned between 10:26 and 10:36.

10:35
3. Bil Seilwaith (Cymru) - Sesiwn dystiolaeth gyda'r Gweinidog Newid Hinsawdd
3. Infrastructure (Wales) Bill - Evidence session with the Minister for Climate Change

Croeso nôl i'r pwyllgor. Dŷn ni'n parhau i graffu ar Fil Seilwaith (Cymru) yng nghwmni'r Gweinidog Newid Hinsawdd a'i swyddogion. Mi symudwn ni ymlaen at y maes nesaf o gwestiynau ac mi fydd Delyth Jewell yn ein harwain ni. Delyth.

Welcome back to the committee. We're continuing with our scrutiny work on the Infrastructure (Wales) Bill in the company of the Minister for Climate Change and her officials. We'll move on to the next area of questioning and Delyth Jewell will lead us on this. Delyth.

Diolch, Cadeirydd. Bore da, Gweinidog.

Thank you, Chair. Good morning, Minister.

A lot of what we've been talking about already in terms of process is plans. It is still very confusing for members of the public. Now, you've said previously that you would like this Bill to make it easier for the public to engage with the consenting process, and you've drawn attention to the fact that there is a single consultation on a single consent, and that it is a more streamlined process. Firstly with that, to play devil's advocate, do you still share the concern that maybe some people who are not as clued up with local groups who might not know that that process is happening might lose out on opportunities to engage with the process, because if they lose out on that one opportunity, then that's gone? And then, secondly, again, looking at the fact that—. Well, some stakeholders have complained to us that the detail about so much of this is left to secondary legislation and, again, that could make it less upfront and easy to engage with for members of the public. So, could you give us some of your views on those different points, please, and whether you think that the Bill, as it's drafted, will be better for public consultation and why that is?

Yes. Thanks, Delyth. There will be two opportunities, and in reality, actually, probably more than two opportunities. So, we're going to enshrine a pre-application stage, where there's a consultation process associated with that. We will set that out in secondary legislation because it will have some detail in it about what you have to do. That will have to be done before the application goes in, the application will have to reflect it, obviously, and so on. But then, actually, during the actual progress of the application, there's a—I can't remember what it's called now—publicity and consultation phase, so there's another phase. So, you'll have two bites of the cherry. One is pre application, when we expect that the developers will do a lot of publicity about what they're proposing and seek views on it, but then there'll be an actual consultation during the process, where you get the traditional—you're notified that there's an application that affects you and you get the chance to come in. 

We'll continue to fund Planning Aid Wales, for example, to assist people to know how to do it, but I do genuinely feel that it's a simpler and more straightforward process. If you think about it now, you also have a licensing process and I, personally, in my own constituency, have been very frustrated by being told that I'm commenting on things that aren't yet under consideration because they're for the planning. Or, conversely, I'm now commenting on things in the planning that were dealt with in the licensing, and it's deeply frustrating—people get very cross about it. So, that won't happen, you'll be able to do the whole thing in a single piece.

I also think, and I've had this discussion in committee before, that, actually, the developers will do a pre pre-application process, so before they go into the formal thing, they'll do some informal stuff. So, I think in practice, you'll end up with three bites of the cherry, because they've got to spend a lot of money on this, so they'll poke their finger into it a little bit beforehand. I was asked in a previous committee why we don't regulate that, and my view is that it doesn't matter how far back you regulate it, they'll do something before the regulated bit. Because they'll want to see whether it's worth spending all this money, and that's what that first bit will be. So, we will regulate the pre-application process. They will have had to have done some things before applying, and then, as part of the application process, there's another consultation point. So, I do, honest to God, think it will be a more streamlined thing, both for us to help our constituents with and for people to actually take part in it.

10:40

Thank you for clarifying that, Minister, that's very helpful. In terms of the pre pre-application process, I take your point that, however far back in the process you end up regulating, developers will find another opportunity to be able to do something before it, but how would you respond to the views that have been expressed by some stakeholders that this Bill still misses an opportunity to do more to strengthen or to embolden and empower community groups? I don't mean this as a pun, but it's not necessarily a question of, 'If you build it, they'll come', so if you build in this process that people will come to it. I know that, in the past, you've said that you don't think that this Bill would be the vehicle for doing that, but do you think that there's something that could be married to this that could strengthen community voices?

Honestly, Delyth, if the committee thinks there is something else we could do—. I just want to say that I very much want communities to have a powerful voice in this process, so I want them to be able to have their day in the limelight, I want them to be able to express those views. We need to know what our communities think about various infrastructure projects going near them. So, anything the committee thinks that we aren't doing, I'm very happy to do. I do think that no matter how far back in the process we go, they'll put a bit in front of that, because bear in mind the nature of the investment that's being made here. We're talking about people who are investing millions and millions of pounds. They are going to want to take soundings before they spend any money, there's no doubt about that. And then, once they've made the decision to spend some money, we force them into a process where they have to do very specific things to consult about it that need to be included in their application, and then the application itself forces them into another process of consulting.

But if you can think of something, because I absolutely agree, quite often people don't realise until the last minute and all the rest of it—it's a problem, isn't it? It's the classic The Hitchhiker's Guide to the Galaxy that demolishes the Earth, tells us that we didn't go to our local planning office in Alpha Centauri, and if we can't be bothered, then we've only ourselves to blame. It's a really great allegory, I guess, for the current situation, isn't it? So, anything that you can think of as a committee that allows us to bring it to people's attention, I'm very happy to do that.

There's a lot of noise in the system at the moment about some of the DNS applications. I know that people are confused by it, but, at the moment, the noise is all in the pre-planning, so it's all about what's happening in pre-planning. So, I've had people in my own constituency say to me, 'What's happening about this application?' I say, 'It's not an application, they're just taking soundings.' That's an inevitable part of what we're doing here. But, genuinely, if the committee thinks that there's some other thing that we should do to make sure we get widespread engagement, then I'm more than happy to consider it. It's been a perennial problem all the way through.

Thank you, Minister, and I know that a number of us on the committee are already considering it, and we'll keep looking into that in any way to see what we can do to strengthen the democratisation of land, almost, and provide some powers over land. Thank you for that—

I'd also be very interested in the committee's views—. We're going to put it into secondary legislation, but I'd be very interested in the committee's views about what the formal pre-application process of consultation should be. So, what should the developer have to do in that? What should we be writing into that piece of secondary legislation for them to do? I'm sure the committee will have a view on that, and we'd be very interested to hear it.

Thank you. Certainly, Minister, and the reason why you're doing that is to avoid situations occurring just like that Douglas Adams allegory that you were talking about. So, yes, that's something I know that—. I could see the Chair nodding when you were speaking, so I'm sure that we as a committee will really want to engage in that process, so thank you.

A number of people who have given evidence to us, and bodies that have given evidence, have drawn our attention to how other pieces of legislation perhaps do some things that this Act could try to replicate. One example of that is that Planning Aid Wales highlighted that there are some sections of the Planning Act 2008—I think it's sections 47 to 49—that place a duty on developers to publicise the proposals and to consult—not to just put it in some obscure place, but to consult the local community to take account of responses to that consultation and publicity. Do you think that there would be any scope or any merit in adding equivalent provisions to that in this Bill, and if you don't think that, could you talk us through how you feel that the Bill adequately requires for something similar?

10:45

So, we're a bit wary about this, if we're honest, because the requirements in the 2008 Act are developed alongside the local planning authority, so you're putting an additional burden on them to produce something. They're only have regard provisions, so they're not very strong—the point that you were making to me only yesterday on the LCM process, it has to be said. And there's not a minimum standard for that. So, I think we're very hopeful that we can put into our secondary regulations a set of minimum standards and requirements that are better, I would suggest, than that, and that we'll have a rather better set of certain things that the developer has to run through in order to get there.

I feel obliged to make the point that consultation isn't agreement. So, it is perfectly possible that you consult with an area, you get 100 per cent response, the response is negative, and yet the development continues to go ahead, because of course it might have national significance that overrides the needs of the locality. I would very much hope that we aren't in a position where we get 100 per cent, but I just want to make the point: consultation is not necessarily agreement. So, what we'd have is the developer looking to put into their application any mitigating features they thought might assist, to take account of the fact that they've met substantial local opposition, what they plan to do about that, what any compensatory measures look like, blah, blah. But they aren't necessarily going to agree with the outcome of the consultation, and we just need to bear that in mind as we put the regulations in.

Yes, and I suppose as a result of that, again, if suggestions were to be made about how to empower communities, it isn't just about empowering communities and strengthening and amplifying their voices, it's so that more people in the community can understand that process and understand that it isn't always a question of blocking something, and it being a black-and-white situation, but more that there is actual engagement, and not—like you say—just have regard to, but that there's genuinely a listening exercise on both sides.

Okay, thank you. And just finally, Cadeirydd, if there's time, and this touches on something that Joyce had been raising with you earlier, but it's from a slightly different angle. The Campaign for the Protection of Rural Wales has highlighted that the Bill says that a local authority 'must' submit a local impact report for a development on land, but it's only 'may' for a marine area, and they say that a way has to be found to reflect the concerns of coastal communities and coastal authorities. Could you please set out for us how the new process would take account of the views of coastal communities on proposed developments in the marine area, because of that discrepancy?

So, this is a difficulty, because obviously the local planning authorities have jurisdiction over the land and it's not clear at all who has jurisdiction over the sea. So, putting an obligation on a local planning authority that happens to have some coastline where there might be some developments off it, to produce documents it doesn't necessarily have either the knowledge or expertise to do, would be quite onerous, but there may be circumstances in which we think that it's justified. It wouldn't, I think, always be justified, and it's just much more complicated because they don't have the same jurisdictional powers over the marine environment.

I can get Neil to talk you through what we think these local impact reports will do, and why that's more problematic in the marine environment. Again, I'm interested in the committee's view, but it's complicated, isn't it, because the local planning authority doesn't have the jurisdiction or resource over that part of the marine environment. They'll all be subject to the same publicity and notification requirements as developments on land, but obviously we acknowledge that there’s more difficulty with that. So, I don’t know, Neil, if you just want to talk a little bit about the impact report.

10:50

[Inaudible.] So, I think, with due respect, we'll pass on going deeper into that, because I think the initial answer gives us a clear indication, unless Delyth wants to, sort of—

No, although perhaps, Minister, if you could write to us—

—with some of that detail, that would be very useful, please.

One just very quick point.

You've got to remember that there's a marine impact report as well, which is prepared by Natural Resources Wales, so a lot of the issues will be covered in that.

Of course, yes, that's an important point. I have Jenny and Huw wanting to come in on this as well.

Yes, I just wanted to go back to the obligation to submit three copies by fax, and the way in which the community will ensure that when they’re looking at an application, they are seeing it in its latest iteration. Because I’ve heard stakeholders saying that modern technology allows us to ensure that, when someone wants to find out about how the regulations affect them in relation to something going on locally, they will get the latest version of the planning Act and all the other plans that go with it. I just wanted some clarification that we’ll get updates in real time, electronically, so that people don’t have to search somewhere else.

Yes, so, part of what will happen in the regulations is that we’ll set out the obligations on the developer to keep up to date the electronic portal that has the application on it and so on. That’s partly why we want to do it in regulations because we want to be able to be specific about how that works. I don’t know if you’re—. I personally am obsessed with searching my local planning portal, and you are able to very easily see the hierarchy of documents and how the plan has changed over time, so it’s pretty straightforward to do and we’ll be replicating that, basically.

Would that obligation also apply to any changes to the regulations, the infrastructure?

I’m really interested in the clarity of this for community consultation where projects may or may not fall within the criteria of a significant development. Because we had that earlier discussion, for example, about hydrogen. Now, if the developer currently, in the current regime, was taking forward a proposal, they could do it under local planning. You’ve made clear that, for example—and this wouldn’t only be on hydrogen—that on hydrogen, there is no way you could conceive that it would fall outwith this, but currently it can. So, if we’re talking about giving advice on, ‘Here’s what developers should do with good consultation’, well, falling outside of this Bill, a developer could start it off as a local planning thing with hydrogen or something else and then it gets escalated, and the public miss out on that guidance on community consultation.

If it were escalated, they'd have to start the process.

So, if you put in an application to the local planning authority to build an electrolyser in, I don't know, the central square of Swansea, for the sake of argument, and the local planning authority mysteriously said, 'Fine, we'll have a look at that', and then at that point somebody here would say, 'I think that might be rather more significant', you'd have to start again basically. It's not in the developer's interest to do that, Huw. It's in their interest to explore whether that's likely to happen because it's going to cost them a lot of money to do that. There's no sneaky way through it. It will just be more expensive, if you do it like that, for the developer. 

Okay, there we are, thank you very much. We'll move on now then and Janet.

Thank you. So, we've received evidence saying that there’s too much flexibility in the Bill to change the time frames for deciding applications. Witnesses have said that deadlines should be fixed, as in the NSIP process, because it provides clarity and focuses the actions of participants to provide information in a timely manner. What is your response to this? 

We think that the overarching timetable should be set on the face of the Bill, so that's 52 weeks—a year, obviously, in lay person's terms. It's very similar to the Planning Act 2008. Then the sub-time frames, like the period of time to validate an application or the examination period and so on, will be in the regulations, so that we can keep them under review if things aren't working out. We think that we also need to have the ability to agree a different timescale, because there are some projects that are immensely more complex than others. So, if you take the Wylfa project, for example, their development consent order was extended I don't know how many times—loads and loads of times—before the developer eventually pulled out because of the sheer complexity of what they were trying to do. We'll set the deadlines by which the various pieces of information are required, but, again, by agreement you should be able to extend or, indeed, contract those, actually, if you're in a position where you could go faster because we need it to be flexible enough to be able to deal with that. And I'm really vehemently against putting those onto the face of the Bill. I think that would really end up being a Bill that just isn't futureproof. So, I think it requires scrutiny. The secondary process should be scrutinised effectively, but I think you need both things. You need a standard process set out in the secondary legislation, which sets out the various sub-parts of the process, but I'm afraid you also need the ability to make agreements outside of that process for perfectly good reasons. 

10:55

I'm conscious that we are—well, I'm keeping a worried eye on the clock at the minute. So, Jenny, very briefly, if you just want to—.

Taking the Wylfa example, surely if they'd done all the spade work in the pre-application stage they'd have realised that it was a more complicated process and therefore it would still be possible to keep to the six months, three months, three months.

So, the problem there is you just don't know what's going to happen. So, with Wylfa, for example, one of the things that happened is that one of the investors pulled out at one point. So, you just don't know what's going to happen. So, you don't want a project that might be very seriously beneficial to the people of Wales to fall because they meet a deadline of 52 weeks, an investor has fallen out and they haven't got another three weeks to get another investor on board. You wouldn't want that to happen. So, we want to have enough flexibility for people to be able to flex the project sufficiently to keep it going. 

Not all of these projects fall on planning grounds. The affordability of them is often one of the things that matters. So, making sure you can keep the financial consortium together that's doing it. Or, for example, I've seen over the course of my career projects where the technology that's going to be used suddenly isn't current, or the manufacturer goes out of business and you have to get another partner on board and so you need an extension of time. There's all kinds of stuff that happens that it's perfectly reasonable to allow extra time for that wouldn't have been predicted at the beginning. And I think if you have a very inflexible system, you'll end up with a system that just doesn't work.

Except that we've heard evidence that it has worked well in England, with the Planning Act 2008.

Well, they have lots of flexibility. The Secretary of State makes rulings in England all the time. 

It has been suggested to us that, similar to the nationally significant infrastructure projects process, should the Welsh Ministers wish to extend the deadline for determining an application, they should make a statement to the Senedd setting a new deadline and outlining the justification for taking this course of action. Would you consider including such a provision on the face of the Bill?

I think that's just not workable, to be honest; I really don't. I think that would just put a level of complexity into the system that just won't work.

Although that is something that happens to an extent in Westminster, isn't it?

I mean, if the committee wants us to look at it we will, but you're putting a level of complexity and uncertainty in there for the developer. So, if you imagine the scenario I've just set out—

Yes, but still, you're still going to have to tell the developer that we've now got to go and make a statement in the Senedd. It's got to be timetabled, it's got to—. What's the purpose of the statement? If all you can do is nod at me, what exactly is the purpose of it?

So, I'm not too sure—. That just puts another layer of complexity into something, and I don't really understand what the purpose of it is. 

Is there a purpose to it, if there's something that's highly contested, even though the process has been followed and procedures done, for an elected representative to stand up and say, 'Well, actually, I get all of that, but I fundamentally disagree with it and I want to say publicly I disagree', and then be voted down or it'll just pass by? We could be talking about a fortnight's procedure. How often would it happen? But I'm just thinking that I can't imagine myself necessarily being in that scenario, but I can imagine there would be other elected representatives who would say, 'I want my last stand. I can't stop it, but I want a say.'

I guess. I think there are other places for such a representative to have their last stand. [Laughter.]

Good morning. We've had evidence from a former examining inspector telling us that section 55 of the Planning Act 2008 allows an inspector to consider whether the material submitted is comprehensive enough to allow a meaningful examination to take place. Would you consider including a similar provision on the face of the Bill?

11:00

Yes, we can. I think at the moment what we see is that we've got quite a detailed validation process, and I wouldn't expect an application to move through into examination if it wasn't deemed to be valid. There's also the opportunity then for the inspector to ask for more information, so in practice it does happen. It might not be on the face of the Bill, but that is the process that is followed as part of the examination.

Okay. So, you're saying—. Did you say that you're happy to put that on the face of the Bill? It wasn't clear.

Yes. We think the inspector already has the ability to ask for more information if they need it. I think that's what we're saying.

Okay. There's mixed feedback on the provisions in the Bill that allow either the examining authority or the Welsh Minister to make the final decision. Can you set out your reasoning for that flexibility and what proportion of applications you envisage being decided by the Welsh Ministers or the examining authority? Of course, we had some witnesses say that Welsh Ministers should be the decision maker in every application, which gives political accountability.

We anticipate that the majority of the decisions will be for the Welsh Ministers to make. I suppose this gives us the flexibility where something becomes more routine to allow the examining authority to do it without having to go through the additional Welsh Ministers' loop. We have no intention of changing what we've got now, and the vast majority of them will come to Welsh Ministers for determination. It's trying to give us a little bit of futureproofing and flexibility in the process, so something just becomes so routine that although it's a significant infrastructure project, actually it's so straightforward that we just allow it to be done by the examining authority. But we think those will be very few and far between, certainly at the beginning of the process.

Moving on to public inquiries, people have said—and they are—that they are adversarial and they can be inaccessible to the public, which is the main thing here. NIPA told us they should only be used in exceptional circumstances. Can you explain the rationale for including the option of an inquiry and provide an example of when that approach might be used?

Yes. This would be reserved for highly controversial, very large projects, where Huw's 'last stand' type of person wants to have a go, and where we feel that there are significant issues around whether or not the thing should go ahead, and it warrants the kind of public inquiry that you see, because, I don't know, it's a huge development in a much-loved area covering loads of triple SIs or something, and whatever, so where you think it warrants it. We think that's pretty exceptional. We're not suggesting that that's a normal part of the process, but nor do we think that we could say with any real certainty that it would never be warranted, so we need to have the provision there in case it is warranted. I think we probably can all think of moments in our past where there's been something where we think a public inquiry would have been the only way through trying to decide who's for, who's against, what the impacts are and all the rest of it. My own very personal view is that in the age of social media it's sometimes very difficult to tell where the real opposition or support is, and sometimes you need to be able to test that in a more formal setting, but we would be very surprised if there were more than one or two in a decade. It's not something you're going to see on a regular basis.

Okay. Minister, I think this goes back to something you said earlier about the pre-application. Very often, people think the pre-application and all the noise that goes around it—and that's where the most noise is—does amount to what we're talking about now. So, I think it's about—. I know that the Bill is very clear on that, but I think the understanding of that needs to go out into the communities perhaps better than it currently does. And whoever's responsible for that takes that responsibility, or joint responsibility, on board, because, like you, I've been involved—I would have been involved where I cover—in that sort of situation, where people firmly believe that they're making the adequate representation, but they're making it at the wrong time and place. 

11:05

Well, I think the real issue there, Joyce, is to ensure that people realise that they need to do it again. So, one of the things that really bothers me about some of the pre-application stuff we've got going on at the moment is that people will think they've done it, they've put their comments in, and, actually, it's prior to anything formal happening. So, it's just making sure that the message gets out that, if you have engaged in a pre-application, or pre-pre-application in this bit, you actually do need to resubmit all of that.

I think you're absolutely right there, Joyce; I really do think we will need to do a good comms piece on understanding that. And I think, probably, we need to work with Planning Aid Wales and others to make sure that we start to get that message out. 

Thank you. Janet, did you want to come in on this as well?

Yes. Thank you. Several stakeholders highlight the potential impact on developers with cross-border projects, on land and in the marine area, questioning how regimes on each side of the border will interact. RenewableUK Cymru specifically identify above-ground electric lines projects. Are you content that the Bill is sufficiently clear on the consenting of cross-border projects?

Yes, we'll have to discuss this with the UK Government and English counterparts all the time. We have the ability in the Bill to switch our process off if we think it's better to be done the other side. So, we think that's the best way for it to be determined, but I take the view—I think probably shared by most of us on the committee—that if something's happening in Wales, it should be decided in Wales, unless there's a very, very good reason why not. So, we'll have to obviously cross that bridge when we come to it. There is a mechanism to do that, and we will need to have close liaison—as we do already, actually—with the planning authorities on the other side, and with the—I can't remember what theirs is called—developers of SIPs, I think, isn't it, developments of significant infrastructure projects.

Okay. And then the one-stop-shop infrastructure consent proposed in the Bill does not include environmental permits or protected species licences. Could you explain the rationale for not including these licences?

So, the Bill isn't intended to cover everything. The Bill is intended to sit within a suite of measures that pertain—. So, we haven't set out every single thing that you've got to do for a particular permit or anything else on the face of the Bill. You are expected to comply with all relevant legislation, so you're expected to comply with existing legislation on environmental permitting, or on—. Actually, we've just discussed it, haven't we, they've just changed the language and I'm going to have to get my head around it—

Environmental outcome reports. 

Environmental outcome reports—thank you, Neil. So, you are expected to comply with others. And as I said, Janet, in earlier remarks to the committee, this isn't intended to be a catch-all of everything you've got to do; this is sitting in a suite of existing obligations. 

But regarding the protected species licences, though, a small example is where we've got the windfarms off the north Wales coast—we had the Rhyl Flats, and then Gwynt y Môr—and there have been surveys since and some of the protected species have declined in numbers. So, I would have thought, in terms of our nature recovery agenda that we might—. And, again, it goes back to the point made by Joyce—too often, developers come in and it's the need for the renewable energy that tops the actual marine conservation and the protection of our natural species. And I think we're all very keen this time around—. By their own admission—. I remember when it came through planning in Conwy County Borough Council, and there's a lot been said since that, if we knew then what we know now, there should have been more safeguards in place, and more protections and licences. So, how do we avoid almost walking into a scenario where we're going to see some of our most protected species decline?

So, I think there are different ways of doing that. So, first of all, we're constantly keeping 'Planning Policy Wales' under review. So, we'll put a whole series of things in 'Planning Policy Wales' as we develop our biodiversity goals that reflect the biodiversity goals, and I think that's the best place to put them. So, we will have a national policy on biodiversity enhancement, for example, long-term management, and all of that will go into the policy documents that the application has to comply with. So, they'll have to show how they comply with it.

And then, just on the protected species licences, we'll just have to look at that with NRW about the most appropriate way forward, because I think what we want to do is we want to make sure that we've got all of the necessary information in the application in the first place to be able to deal with all of the various licences, Janet, rather than have to have separate things in the process. So, what we'll be doing is working with NRW to make sure that, when we specify what the applicant has to do in the application, it has all of the right information in it.

11:10

And how can we be confident about the weightings to the value of the protected species, as opposed to the need for the renewable energy? Also, we know that there are issues with resource and capacity within NRW. If there are a lot of projects coming along the line, do you believe, Minister, that NRW have the ability to drill right down to this so that nothing is overlooked?

Okay, we did discuss resources earlier, but it has a relevance here.

But, basically, NRW could object to having it and make them go through the consenting process anyway,

That's right. So, I think that's the important point. Both habitats regulations and assessments, and environmental permits, aren't automatically included, but they can be included. And a deemed licence can be made as part of the process, provided NRW are happy with that. So, I think you have to ask the question first: are you happy for this to be included in the process?

I think the point you were making about how you consider all of these environmental considerations come back right to the start of the conversation, when we talked about a more strategic approach and understanding of the natural environment, offshore in particular.

Okay, thank you. We've seen in England—and we've spoken about loss of biodiversity—obviously, there's a requirement for a net gain of 10 per cent. RSPB Cymru has suggested to us that, maybe, this is an opportunity for the Government to push for, maybe, 20 per cent, because we always like to do things better than England. Clearly, is that something you would consider, in terms of writing in some biodiversity gain requirement? 

I don’t think this is the appropriate vehicle for that. I'm very interested in writing net biodiversity gain in, but we have another piece of legislation coming, as you know, with an environmental governance body in it, and a set of targets. That's the place to do that. This is a straightforward process Bill, and I think complicating it with arguments around restoring nature and net biodiversity gain—. This is just not the right Bill for it. There is another opportunity for the Senedd to do that, though, and obviously those Bills—. These are a suite, so the forthcoming Bill will also interact with this one.

Indeed, and we'll no doubt be talking about that quite soon, I hope, as well. Okay, we'll move on to Joyce.

I'm going to talk about consent orders and compulsory purchase right now. Network Rail raised concerns about section 72, which states an infrastructure consent order may require extinguishment of certain rights, restrictive covenants or removal of apparatus of statutory undertakers if the Welsh Ministers are satisfied that doing so is necessary. And they said they’d like to see an appropriate test in place so any such proposals don't impede its duty as a statutory undertaker to carry out the works. So, are you content that the Bill provides sufficient safeguards, to Network Rail in this case, in terms of maintaining its access to land to carry out its statutory duty?

Yes. So, we've got section 72 in the Bill, which is a restrictive power, to ensure Welsh Ministers give appropriate consideration to the statutory undertaker's duties, where rights or restrictive covenants are proposed, and that's the place that we've got this marked in the Bill. I'll let Neil or Owen talk to you about the detail of it, though.