National Assembly for Wales

You're testing my Welsh now. 

Okay, yes, I'm testing your Welsh.

Diolch, Cadeirydd. We've been preparing for a very long time this very large and very technical Bill and the explanatory memorandum for introduction to the Senedd. It's been a long time coming, so my thanks to the team of people who've been doing all of that work. I do understand why the committee wants to see a statement of policy intent, though, and we'll probably be providing them shortly after the summer recess. 

So, they will be available during our period of scrutiny of the Bill. Okay. That's useful. Diolch yn fawr. 

The Bill, as we know, establishes a new unified consenting regime, replacing a number of different existing processes. It's been long acknowledged that this needed to happen, so I'm just wondering why is it only now that this is coming forward, because, clearly, you and others have been saying that the current system isn't what it maybe could or should be for many years.

It's just about the resource available and the number of experts that we need for this particular Bill whose expertise was also required for a number of other things, like the European Union exit arrangements, and so on. And in the end, we've only got so many experts. This is a very technical Bill. This isn't something that you can have a series of excellent although generalist civil servants looking at. So, we have to have people with the correct level of detail and skill. So, Chair, it is what it is, really; we're very delighted to have got it here now. We would have much preferred to have had it in earlier because of all the issues that we face, but, as I say, the best time was 20 years ago and the next best time is now. 

And conversely, then, what would you say the risks would be if we weren't to move in this direction at this current time? 

I think there's a real serious risk of developers just going somewhere else, because if we can't speed up the system, then it takes a lot of time and effort to get particular things in place. The committee may well be thinking of a renewable developer, for example, but, actually, these are things like flood defence schemes, and so on. So, we need contractors who want to come in and do the very best work they can. It's harder to tender for those kinds of schemes if you've got to have a series of consents beforehand, and so on. And frankly, it takes an enormous amount of resource to administer the current system, and so actually this is very much an invest-to-save type arrangement as well. We think it will also provide better protections in the environmental sphere, because it's a more comprehensive procedure that will allow us to address everything in the one hit. So I think really, all round, this is something that is very much needed. 

Clearly, we'll come on later, I'm sure, to striking that balance between doing things efficiently—quickly, if you like, or effectively—but also responsibly, and that's a balance I know that the Government is keen to strike.

Can I just ask, on a general level again, then, before we move on to some specifics, how will the Bill engage human rights? Because obviously there are issues, potentially, around giving certain groups and individuals rights to do things, and ask for things. Could you just tell us a little bit about the balance that's being struck there, and whether you considered other options that maybe had lesser impacts on human rights?

As always when we look at human rights, we look to see whether what we're doing is proportionate, justified and reasonable. It's the same mantra every time—whether we've got the balance of rights right between individual rights and the public interest. So, there's a series of things to look at with this particular Bill: interference with property rights, for example; making sure that individuals have an opportunity to challenge measures that might interfere with their rights, or their particular property rights. We're very clear that this is a very good balance between particular rights and the public interest. In fact, actually, one of the things I very much like about this new system is it gives communities more involvement and more opportunity to be heard. So, while that's not strictly a human rights issue, it covers the general area, which I'm very pleased about. 

And we'll be coming on to that in greater detail in a moment. Thank you, Minister. Huw.

Diolch, Gadeirydd. Good morning, Minister. I want to turn to the issue of consultation. One of the fascinating things with this—. In response to the Chair now you've already said that the ideal time for doing this may have been some years back. Here we are now today, but of course the consultation took place in 2018. There were a great number of responses, but time has passed. But let me stick with the consultation first of all. As a result of the original consultation, what do you feel have been the main changes to the Bill as now presented, because of that 2018 consultation?

The vast majority of people who responded were very much in support of the proposals, and effectively saying how we started this meeting, which is, 'Why not just get on with it?' So, they weren't looking for changes so much as speed, really. Some of the comments were very detailed, and aren't on the face of the Bill—they will be set out in the regulations that follow, as you'd expect. There was a review of compulsory purchase powers as a direct result of the consultation. That's actually an ongoing conversation with the UK Government, which the committee might want to get into. We took account of those comments, but the vast majority of the respondents were just saying, 'Goodness me, get on with it'. 

As it is five years ago, let's move on, then, to subsequent discussions that you and your team have had, resources allowing. Because we understand from the explanatory memorandum that organisations such as Natural Resources Wales, Planning and Environment Decisions Wales and National Grid have been consulted since the consultation in 2018 on particular aspects, so there are clearly areas you wanted to get into in more depth. So, can you set out a little bit more detail about what you've been discussing, the work that's taken place since that consultation? Perhaps there are things such as technology, but also what were the other views of stakeholders that they wanted to see refined as you brought this forward?

I'll defer to Neil in a moment, but just to say, Huw, what we've been trying to do is to make sure that the Bill is sufficiently flexible to be futureproof. Much of the discussion that you're talking about there has been not really to shape the Bill any further, but to make sure that it is capable of being sufficient in the face of a widget nobody has ever heard of yet suddenly coming over the horizon and being something that everybody wants to deploy. So we've had a lot of discussions with people around the flexibility of the Bill.

We've also done a number of other things that are tangential but impact the Bill. The committee will be aware that we did an end-to-end review of marine licensing, for example, which has obviously played into this, and there have been discussions with Planning and Environment Decisions Wales, or the planning inspectorate as it's colloquially still known, around this, to talk about technical aspects of some parts of the Bill, about how they interact with it. And we have had some discussion with local planning authorities, as you'd expect, and with NRW about the interaction of it. But it's more about the implementation, I guess, rather than the detail. But Neil and the team have been very involved in those discussions.  

As the Minister described, yes, we did a formal consultation exercise, and we believe that the fundamental components of that still stand. However, what we had sought to do is co-design the Bill as we worked through it. Obviously, we have got some bodies that have a particular role in relation to the potential legislation, so we have worked very closely with NRW, particularly as we are talking about taking forward some consents that NRW would be responsible for. So, we've worked with them on the Bill. We need to carry on working with them, and we are working with them, as we start to map out the statements of policy intent and the subordinate legislation that will come.

Similarly, with Planning and Environment Decisions Wales, as the likely operator of the system, they have a wealth of knowledge around how things that are on the page will actually work in practice. So, we have worked with them as well, very closely. So, we have gone through that process. We have also worked quite closely with some of the representative bodies for the agents that will be submitting these sorts of applications. So, this is a particular group of agents that specialise in this sort of of work. We have also spoken to them. So, the process isn't a once-and-for-all 'we consult and we legislate'. We have got a much more co-production-type approach because we want a process that is going to work for everybody at the end of the day.

It sounds as though the time hasn't been wasted, even though—as you said, Minister—it would have been good to have got here earlier. The discussions have continued, and you flagged, Minister, that this Bill is designing in the flexibility, which is an interesting thing. Sorry, with a different hat on, as Chair of LJC, I bring up the flexibility, and there might be further discussions on that. But you certainly haven't wasted your time here. One of the things picked up in the EM is the interesting issue of the consenting of overhead and electrical power lines. So, what can you tell us about the interesting discussions that you have been having on that?

I seem to spend half my life in meetings with people about grids, overhead lines, et cetera. The officials have met a number of times with National Grid and Scottish Power as well, and that's around the consenting regime for them, and the general network improvements that we have been looking for.

I also have several hats on, Chair, I'm afraid. Obviously, with one of my other hats on I am very keen indeed to get grid better deployed across Wales, and with some alacrity. So, I'm very keen indeed, with my other hat on, to ensure that we have a consenting regime that is fit for purpose, but has all the right community involvement as well. The last thing that we want is community alienation, if you like, from those kinds of developments. So, I'm very keen indeed to make sure that this Bill does what it's supposed to do, which is have the community involvement, but also streamlines the process. But Neil can tell you a great deal more about the specifics of the discussion. 

I think that it is probably fair to say that this is a complex area when it comes to how electricity lines are permitted/consented. What we are essentially dealing with here are electricity lines up to 132 kV, associated with a devolved generating station. So, you have got a generation station at one end of this.

When we spoke to National Grid and SP Energy Networks, the main issues that they raised were actually issues that this Bill cannot address. They raised issues around the existing reinforcement of gridlines that we have now, which we know need to be reinforced but which unfortunately don’t fit within devolved competence.

They also had some concerns about how any rights that we give as part of the consent could be passed on to them. So, if a developer gets consent, how can that then be relayed on. We have reassured them that the process that we set up here allows that to happen.

So, I think that the main message from this is that this is a very complex area. We have simplified as far as we can within our competence here. But there is an awful lot of work going on in other areas to look at the grid that we need in Wales going forward.

That's helpful. I think that you have made it clear that getting that balance right between the ability to engage and consult with communities who would be affected, but also not inhibiting the ability to facilitate infrastructure development, is what you're seeking to do. This is a live and interesting issue, clearly. 

Can I just turn to another aspect of the original consultation, which was that the majority of respondents agreed that the Welsh national marine plan, Future Wales and topic-based policy statements should provide the policy basis for determining infrastructure development, but they also suggested that more consideration should be given to the role of local development plans. So, has the role of LDPs been strengthened as a result of the consultation?    

This is very complicated as well, because this, of course, covers marine, as well as land-based issues. We've had a long discussion with local authorities about this, and, again, Neil and colleagues have been 'embroiled'—I think is the word—in discussions with local government colleagues for a very long time on this and a number of other related matters. So, the way it will happen is the applicants may go to the local planning authority first to request pre-application services and so on, and they will be required to provide those services, but that's the case now—right?  

Right. 

And then, because this will capture developments for marine as well, it's much more complicated than that. So, they'll be required to put in a local impact report and that can be put in by any relevant community councils as well, if they want to do so, and that's supposed to highlight an impact that a proposed development might have on a very local area, and that will be to ensure that the voice is heard. But obviously, if you're talking about consenting an offshore development, then, that's a wholly different kettle of fish, although it's possible that the shoreline local authority might have a view or the shoreline community council might have a view, and that would be enabled by the Act. We also think that—.

We expect this, let's be clear, to lighten the burden on local authorities, but there will be a moment where it beds in, won't there? But we expect this to streamline some of the things that normally happen. So, if you think about the way that—the one I always use, forgive me, Neil; he's got bored of me saying the same one over and over again—but if you think about a flood defence, at the moment, you might need to have the Highways Act 1980 stuff, you might need to have harbour authority stuff, you might need to have a marine licence, you might need to have planning consent for the works, you might need to have—. So, for all of those, there would be separate applications done sequentially and the local authority would be involved in responding to all of those, whereas, now, it would be a single process with one impact report. So, it definitely does streamline it for them. 

Chair, just one final comment that you might want to come back to, when you prefaced your remarks by saying that this is another area of complexity and so on, are you confident that what will come through as a result of this Bill and the implementation of it will make this process simpler and more streamlined, whilst also allowing local authorities and community councils and other organisations, Pembrokeshire national park and so on, to have an input into the process as well—complexity streamlining?  

Yes, yes. So what we'll do is we'll work with the local authorities to make sure that, when we put the regulations in place that say what the minimum requirements of an impact report look like, we will have co-produced it with them. But we have a minimum standard for that, and then, the determining authority will have to take account of the impact report and set out in its report how it's taken account of the impact report, so there's a double feedback loop, if you like, in that. So, that's a great deal better than they would get in most of these now. I do think that.

And there's a real chance for community involvement at the front end as well once. So, you've all heard me say this a number of times—I said it in Plenary and I'll say it again now—I have constituents who complain about this all the time. I'm sure that everybody else does too. You've got constituents who, generally speaking, are trying to object to something—they don't tend to contact me if they're hugely enthusiastic about it—and normally, they're very frustrated by the fact that they're trying to object on particular grounds, but, actually, at the moment, we're considering the licence, so that's not relevant, or, actually, it's now planning and they should have put it in in the licence phase and they've only just realised, or some other hideous complication, or they've tried to respond to both and it's really complicated. Well, now, there'll be a single process, a single point of engagement, so it will be easier and much more understandable about what you can put in by way of your commentary on it. So, I really honestly do think that's a better process, and you don't end up having to spend hours trying to explain where in the process you are and who it is exactly that you are complaining to, and that's something I encounter all the time. I'm sure all the rest of you do as well. So, I think this will be very much more simple for communities to take a view in a coherent fashion and understand at which points they can contribute to it. I think that's a real benefit.

Thank you. Because we're all running through in our heads now at what point the groups that we're receiving correspondence from would engage, because, very often, what we see with LDPs and the NDF is that decisions have been made before they become aware of the discussion happening. But I know Jenny wants to pursue community involvement. Before we come to you, Jenny, I think Delyth would like to come in on something.

Sorry to the sound engineer. I always do that—sorry, I try and unmute myself at the same time as you're doing it. Diolch, Cadeirydd. This may link in with the next section, but you were specifically saying, Minister, there how it will help people to get involved because of getting rid of the complexity of the process, because it'll be more understandable. This might be a really daft question, so please forgive me if it is: would there be any danger that, in getting rid of that complexity, it would also get rid of different opportunities for getting engaged, that, because it would all be under one system, there would be fewer opportunities, or is that a really—? I may well be missing something fundamental by asking that, though.

No, that's a very good question, actually, Delyth, because it does consolidate, if you like, the point in time at which you are able to get involved. For some of the processes we're consolidating, there's no current requirement to consult at all, so, although people do consult, there's no actual requirement to, so it does put that in. What this will do is it will have a consistent pre-application consultation requirement that is part of the process for the applicants, so they will have to do it. So, it will be much more consistent and much more transparent.

But, you are right, it will be single points of it, but, forgive me, I think for most communities, it's a bit of an illusion that there are several points when they could contribute, because it's so complex to figure out exactly how and when that most of them miss the opportunity. So, if I could use this as an example—and forgive me, Neil, please interrupt if I garble this. One of the frustrations for us is that people tend not to engage at the LDP process in a local authority, they tend to let that go by, and then object fiercely when the field next door suddenly has a sign outside it saying it's going to have houses put on it, because it's too far away from them for them to engage. So, what this is doing is trying to put in place a system that allows people to engage at the correct moment, at the pre-application stage, so they can get involved at the right point, if I can say that.

Because you must have this all the time, I have it all the time, saying, 'Well, it's in the LDP. Why didn't you say something at the time?' and they're like, 'What's the LDP?' I'm a fan of science fiction, so if you like Hitchhiker's Guide to the Galaxy, the Vogon constructor fleet is going to demolish the Earth because we didn't object to the LDP in Alpha Centauri, the local planning office. So, I think that does feel a little bit like that—forgive me, Neil—to some of our communities. I think this will put a much more simplified and engageable process in place, that's what I'd hope. Forgive me for that analogy; I know you don't like it. [Laughter.]

I enjoyed the analogy. [Laughter.] If I were to go further with this, I'd probably impinge on what Jenny is going to be asking, so I'll leave it at that. Diolch.

Well, let's go to Jenny, and then you can come back in if you wish. Jenny.

Large infrastructure companies, who are the ones who are going to be the subject of this structure, are not known for speaking human or, indeed, being particularly transparent about the advantages and disadvantages of a particular proposal and how it'll affect citizens in a village, a town or just an isolated area. So, how do you think the community involvement is going to be more involved? I understand about the streamlining, that people won't be told, 'Too late for that now.' But it's really more about how you level up—.

We're planning to put a prescribed process in place, but, in all honesty, if the committee has any ideas at all about what that should have in it, then we'd be very grateful to receive them. You're taking evidence, I know. There are lots of technologies available at the moment, I don't know if the committee's familiar with the maps that we do for active travel, which have been very successful, certainly in my constituency, with people being able to really engage in what that actually looks like. So, there are technologies available to allow you to see what's being proposed. We look to make sure that the companies putting forward applications through this process engage with those technologies, and we will have the opportunity to say that as part of the application process, 'You must do the following things'.

So, Jenny, it won't be left up to them to say that they did their level best, but nobody came to the meeting at 14:30 on a Tuesday afternoon in December. That's not going to be a thing. It's going to be a properly set-out process by which you have to do a number of things. But actually, in all honesty, if the committee has any evidence or information or ideas that you think we should incorporate, I am very happy to do that. We do really want to engage as many people as possible in this process.

Okay. I'm sure the committee will want to take up that challenge and thank you for that.

Just on that engagement, then, has the Government engaged with any sort of local groups or organisations that are campaigning, or have maybe campaigned in the past, for—or more likely against—infrastructure, just to ask them, 'At what point do you think you should have been involved, or how best could you have contributed retrospectively in terms of the—?'

Yes, so, for example, part of the end-do-end marine licensing process, we certainly had a look at that—discussed with various groups why they didn't or did put things in at the time. Neil's officials have done that a lot. And I suppose, also, we're going to continue to fund planning aid as well, so making sure that we advertise the services of planning aid to help people to understand how to engage with the process. We'll continue to do that as well, but I don't know, Neil, if you want to give some more detail.

No, that's correct, Minister. So, we have obviously reviewed some of the engagement exercises that have taken place. I think it's fair to say that, from our experience, most of the consultations, certainly for developments of national significance, go beyond the statutory minimum. I think there's a difference between engagement and people getting the answers they want. I think that can get confused. What we're looking for here is a process that gives everyone the opportunity to make their views known, but there's no guarantee that those views will stop or change—. And I think that's probably the most difficult message as part of this.

Yes, okay. Thank you.

But this is all part of the problem, isn't it? I mean, I absolutely understand that—that just repeating something isn't going to get you where you—. But it does require both sides to be listening to each other and being prepared to be flexible. I suppose my concern is that the Planning Act 2015 also promised better engagement with communities, and I'm not sure that communities feel that it's improved. It may have done, and there may be some scientific way of being able to prove that, but it doesn't feel that way. And I've yet to see a renewable energy company say, 'In exchange for lending us your view, we will give you cheaper energy'. It's all piffling sums of money.

They're not allowed to do that, to be fair. [Laughter.]

Okay. Perhaps we need to change the law. [Laughter.] Well, I thought if you'd produced the energy locally, the—

If you own the energy locally, you can use it, if you produce it locally, you can have the benefit of a community benefit fund, but that cannot include cheaper energy.

Okay.

So, just to be really clear.

Okay, well perhaps we need to change the law on that. [Laughter.] So, I think the problem is how you have meaningful engagement without holding things up forever. There's a certain new hospital building in Cardiff North that's being held up by Natural Resources Wales—

So, as Neil has very fairly set out, there's a difference between being heard and having your views taken on board 100 per cent, and to be fair, lots of community groups are heard and their views are partially taken on board. So, I disagree with you about the planning Act. I think there's lots of evidence that we have around the country that the views of local residents have affected a development in a particular way. So, I can think of social housing developments, Jenny, where the houses have turned in a different way because of worries about overlooking gardens and all the rest of it, which have been taken into account. And I'm talking about big developments now, not a single extension or something.

But of course, you'll always encounter people who put their views in and those views weren't 100 per cent taken on board, and therefore, they are aggrieved, and feel they weren't heard. But there is a big difference, isn't there, between listening to somebody and necessarily acting 100 per cent on what they say. So, the Bill will have to allow us to have a proportionate response to that, so it will set out a process by which the engagement should happen. It will set out a process by which the developer will have to say how those views were taken on board, or not taken on board. And then, similarly, with the local impact report, that will have to have certain things in it, it will be a minimum standard; the decision made will have to set out how it took that on board, or, if it didn't take it on board, why it didn't take it on board and why it was proportionate. So, there'll be a feedback loop in it, but that's not going to make somebody whose views were not 100 per cent taken on board ecstatic, is it? But you're never going to get to there, because otherwise we'd never have any development of any sort—there's always somebody who doesn't like a part of it. 

So, it is about proportionality and making sure that all legitimate views are put in place. But we have examples all over the place where people continue to be unhappy. Even though planning consent has been granted and so on, they continue to make a fuss, which is their right of course, but, unfortunately, it doesn't have any effect on the actual planning system. For what it's worth—and forgive me, Neil—it's very frustrating from my point of view as well, because the planning system also has a big lag built into it. So, sometimes, you see something being built out that received planning consent some considerable period of time ago that no longer meets any of the current thinking, but which is enforceable by the person with consent because they got it x years ago when they started building it up. 

So, I have asked the officials to look very carefully at ways of trying to implement current planning policy faster. So, to give an example: at the moment, if you start on a development of 50 houses and you start that development within a year of your planning consent, you can take as long as you like to build it out, and they will all be built out to the standard of the planning consent at the time. Well, I mean, that's ridiculous in my view. So, I would very much like to move to a system where, of course, you can complete each house or whatever, but if you haven't completed 39 of the 50 houses in four years then you have to go to the next iteration of building regs or whatever. So, we're very much looking to see that. And some of the disquiet you get in communities is that building out of old planning consents, where people are very unhappy about it, but, in fact, the law is at the moment that you have the advantage that you can take advantage of that planning consent.

So, Huw wants to pick up on that—unless, Jenny, do you want to respond to that?

Well, there are obviously concerns about land banking or seeking permission in order to prevent somebody else from doing something else. But the citizen feels really quite powerless in all this. And I think it's difficult, when you've got very large companies with huge pockets, ensuring that the process is rigorous enough to be able to say, 'No, that won't do.'

So, there are two things there. This Bill is about particular infrastructure developments, which won't fall into that—we're in danger of straying out more widely into the planning system, forgive me. But there are two things there: there are compulsory purchase arrangements, and, if the committee wants more detail on that, I would suggest you ask us to do that in writing, because that is a two-hour stint all by itself, I know from experience. I'm more than happy to do that. But we're also—. So, we've been trying to put a vacant land tax in Wales for a long time with no success at all for various complicated political reasons I won't go into.

But, actually, the UK Government is currently consulting on 'hope value', as it's called, and the way that the Lands Tribunal values land, not taking into account the hope value, and that would allow us to get rid of some of the land banking. Because, at the moment, if you compulsory purchase land that's got the potential of planning consent, you end up paying an enormous amount of money for it. If you could take away the hope value then you would be able to do it at much lower cost, Jenny. But I have to say that that isn't part of this, that's a wider discussion about planning policy, which I'm more than happy to have with the committee at the appropriate point.

Of course, at some point, yes. Huw, you wanted to come in on something.

Yes, sorry, Chair, and I definitely don't want to divert us into planning policy or whatever, but you mentioned something there that was quite significant, that you were looking at this issue of making a speedier transition with aspects of planning law so that builders have to comply with them. That's quite interesting for us as a committee because it means it should be an incentive to developers to develop faster, because, typically, any change in planning legislation or housing regs or whatever tends to be more progressive—sustainable drainage systems et cetera, et cetera. It adds a bit of cost to the developer sometimes as well. So, if you could write to the committee on what you'll do on that. But I don't want to disappear down a rabbit hole.

Might I suggest, Chair—it's not for me to set your work programme, but I'm more than happy to come and talk to the committee about general planning policy otherwise. 

Can I just say that this Bill is about the process? So, when somebody gets consent through this process, they've got consent. They'll have consent in the current regime. If we want to change that, we have to change it through a different process than this.

Okay, thank you. Before we come on to Joyce, I think Delyth wants to pick up on something.

Diolch, Gadeirydd. In the context of this Bill, because I know that this is a wider question and it would it touch on other aspects of the planning process, but, in the context of this Bill, is there any opportunity or do you think that there could be any opportunity accompanying it to correct what you were referring to earlier when you said to us, Minister, that no constituent would ever contact us if they were enthusiastic about something that was going to be happening, they tend to get involved when either there's a perception that something has gone wrong or they're unhappy about something? In terms of these large infrastructure projects, is there a way in which the community could be brought in even before processes start, just so that it's something that comes from the community in the first place, rather than them being consulted on something that comes from developers? Or is there any way that could try to correct that idea that people don't get engaged because they're enthusiastic about it?

I think that's what we're trying to do through the local impact reports. So, at the moment—. Just to be really clear, at the moment, if you love a planning consent, there's nothing to stop you writing to the local authority saying how much you love it; it's just that people don't, generally speaking. So, what we're trying to do is put the local authority and the community council in a position where they can say, 'The impact on our community will be very beneficial. It will have x and y good outcomes for us,' and so on, or, indeed, not. The impact report will be compulsory, and therefore if the consensus view is that this is a good thing then the impact report will say so. So, I'm very much hoping it will encourage that kind of thing, and also the pre-application engagement piece, the open days that you have that people go along to, it's surprising how many people go along to those and say that they like the development that's being proposed. So, we hope that it will give people more of an opportunity to interact in that way, and that can be captured. That's why the committee's views on the best way to go about that are very welcome.

Thank you for that. Just finally on that, I think that this is, in some ways, possibly an inevitable issue, but there's this gap between people who are super engaged and who will always have a view and will have the time to get involved with local groups and will be privileged to be able to have that engagement, who could really benefit from all of these provisions I think. But is there a danger that the people who are not engaged and who are not linked in with those groups, that they will get further disengaged because of that issue we were talking about earlier, because of the consolidation of how the engagement would work? Is that outside of the scope, do you think, of this Bill? Do you think that there could be guidance that could in some way go along to make sure that that gap doesn't get bigger?

So, I think we'd be very keen to hear views from the committee about how to get as many people who might be in an impacted area engaged as possible. So, what would the notification process look like? It has to be proportionate to the cost of the development, obviously—I mean, writing to 1 million people via the post is unlikely to be something that's proportionate, but what is the best way to do that? As I said earlier, we continue to fund planning aid, so we continue to assist people to—. We signpost planning aid through all of our local authorities, for example, and so on. It's actually quite widely used in my constituency. I publicise it and I encourage all of you to do so.

So, Delyth, anything really that you think could—. How do you get people engaged? We do all of the normal things, don't we? People often don't know about a development until there's a sign on the local lamp post or whatever, places that people walk past. Lots of the developers for renewables have big displays in a local shopping centre, for example, or in a local town, so that people just walking by or passing by will see it. We know that that happens through the current DNS process. You will have seen that around Wales. One of the developers was telling me a lovely story about the engagement they were doing in a place in north Wales where the signs were all in Welsh on the front and English on the back, and somebody getting very cross about the fact that they had to walk around the back for the English, which I'm afraid I was amused by. Anyway. But that kind of thing, where you're trying to do it in the local first language, for example. So, it's mostly in Welsh in Welsh-speaking areas, or, indeed, actually, in Cardiff and Swansea city centres, there'll be other languages that you might want to make sure that the application is available in, because they will be the first language of the people walking by. So, there are lots of things we can do to make sure that we access groups that are known to be disengaged from the process. 

Thank you.

There we are. Diolch yn fawr. Okay, we'll move on to Joyce. 

Good morning, Minister. I'm going to ask about significant infrastructure projects, or SIPs, I suppose we could call them. Could you explain how you've arrived at the list of infrastructure types, and associated thresholds and criteria that then qualify as a SIP?

I can, but I'm going to ask Neil to do it, I'm afraid. [Laughter.] 

Okay. So, there's a combination of things we've actually used to create the list. So, we looked at the existing criteria we have through the developments of national significance. So, that is part of it. We've also looked at our experience of operating that system, and whether those criteria are still robust, they're still the correct criteria. We've gone further, and we've actually—. Back in, I think it was 2018, we commissioned WSP to give us some advice as well on what, potentially, could be included as a significant infrastructure project. We've consulted on those lists, and we've also taken into account the additional powers we got under the Wales Act 2017. So, there's a combination of things that have fed into that list that you see in the Bill. So, we've worked in that way. 

For us, it was important, I think, to keep as much of the DNS criteria as we could, because it aids the transition between regimes. So, if there was a big change, it would upset the process, so we've retained a lot of that, so that's helpful. WSP looked at that long list. There were some things on that list that they've discounted. So, they felt, for example, there wouldn't be a demand for further oil refineries. So, that was discounted. They looked at opencast coal; we have decided to include that. They looked at minerals applications; we haven't included minerals applications, because of the process around local authorities actually collecting and evidencing the need for those. So, there's a lot of work that's gone on there.

I think, generally, people in that consultation felt the balance was about right. So, that's what you see today in the Bill. 

Were there—? You mentioned a couple of things that didn't make it onto the list, and, obviously, oil exploration is an obvious. Are there other things that people might have expected, in your opinion, to be on this list that aren't on this list, and the reasons why that is?

So, there were none that were raised. There were no additional areas identified. Now, that's not to say that things may not come forward in the future. So, we don't know what technology we're going to face in the future, and the Bill does allow us the flexibility to incorporate new technology. Similarly, we have the ability, through the national development framework, to designate significant infrastructure projects of any type. So, we've got a couple of ways in which we've, again, introduced flexibility to allow us to capture things we're not aware of now. 

How easy would it be to put that flexibility in and for it to become a significant infrastructure project? Because you're right in saying that technology is moving at pace and there'll be things we don't even know about yet.

Yes. So, what we're talking about using there, potentially, is a piece of secondary legislation to give us that additional flexibility. So, we have the general power in the Bill, but we will then be able to—. I think we're calling them 'directed applications'; I think they're called 'optional' now, but there's an opportunity for the Minister to direct and actually say, 'No, this is a significant infrastructure project.' We will provide, potentially, criteria in that guidance about the sorts of things that could be covered—the sorts of impacts they would generate, for example. So, I think most applications will be captured by the criteria that we have, but we need to be able to account for the unexpected, the unplanned for, the unknown, at this point in time. 

I think as well, Joyce, it's worth saying that there are thresholds for size and so on. There are a couple of things, like a large retail development, for example, that were not included here, even thought they might be very large, because we thought that the local planning authority was probably best placed to do that—it was unlikely to have national significance. But it is true to say that, if we think a particular project does have national significance, even though it's not listed, we can reach over and pull it into the system as part of this. So, there are two ways of doing it. You can either designate something, which we think we’ll have a continued number of applications for, or we can, in a single instance, basically reach over and pull it into the system, because we think that, for whatever reason, this particular application does have national significance.

If I may just come in, briefly. Minister, you've illustrated a few examples earlier this morning of potential infrastructure projects. You've quoted flood prevention. Of course, that isn't proposed to be a significant infrastructure project in the Bill, albeit maybe something you may wish to add at a later stage. But you've defaulted to that in giving examples, so I'm just wondering on what basis are you not including it initially.

Well, because most of them aren't of national significance. But, actually, the one I'm thinking of, we would almost certainly have pulled it in. So, it depends. It depends how complicated it is. I'm using an example of a particularly complicated one with harbour revision orders and highway orders and marine licensing and whatever. To be fair, most flood defences don't have any of that, but there is one particular one that I've got in my head that would definitely have got called in because it was so complicated. So, we would want to streamline it. But, you know, lots of the flood defences I've recently opened didn't have that kind of complexity associated with them, and so they wouldn't engage the system.  

That's fine. Thank you. Back to you, Joyce.

The Bill also provides for optional SIP thresholds and criteria that sit below the compulsory thresholds and criteria. Could you explain the rationale behind that approach and provide an example of a project that might be captured by that? And I know, Julie, you mentioned an example, but, you know, something—. 

The one I just talked about, the flood defence, is obviously one of them, but another might be a medium-sized windfarm somewhere that doesn't engage the threshold for this, but, for whatever reason, because of the complexity of where it is or the grid connection or the construction regime or something, it becomes a national programme. We might pull it into the system for that. But you wouldn't want a community development of four wind turbines to automatically become a SIP. Clearly, it isn't. So, it's about trying to strike the balance. And, of course, in putting thresholds in, you're always going to get things that waver on the threshold that could have gone either way, and then the process would allow us to take a view at the time of those, basically.

I'm going to ask the next question, but I can guess the answer. But I'm going to put it on the record. The Bill allows for named SIPs to be specified in the national development framework or 'Future Wales'. Can you explain the benefit of this approach and give an example of the type of project that it might apply to?

We're trying to direct development in Wales to particular areas for particular things for obvious reasons. We're trying to make sure that we have fast-growth zones, or protected zones. We want our designated landscapes to be protected in particular ways. We've all signed up to the 30x30 goals, for example. So, it's about trying to make sure that Wales, as a whole, has a coherent planning system. Members will be very aware that we've got 'Future Wales', the national plan, in place. Regional consortia are in the process of putting strategic regional plans in place, and then the LDPs hang off. I said, when we were doing 'Future Wales', the national plan, that we've gone about it the wrong way up, but as I said at the beginning, and sorry for the cliché, the best time was 20 years ago, the next best time is now, et cetera. But we've now got the strategic framework in place. We've got virtually all the LDPs in place. The authorities are working on the strategic plan. Once they're all in place, then the cycle will fall in, and that allows us to say that, in these particular areas, we expect to have projects of national significance because we've basically designated them. It makes a lot of sense for this to be a coherent programme for Wales, doesn't it?

You're going to have tension in those two things that you've just described—an area that people think is obviously of significant outstanding beauty, let's say, and a developer that wants to come along and put some windfarm structure in it. We all know that that is the case. How do you manage those tensions? In a way, it sort of comes back to the consultation as well, because it's very easy for those people who are against things at the moment to join a big lobby, and that's fine, but it's not so easy for people who are in favour, and there's a local tension that's going on where people don't feel empowered, in some cases, and they might become the silent majority rather than the vocal minority. But it's about those infrastructure projects and pulling all of that together to move forward so that people feel reasonably listened to.

As I said earlier, I think there will be a number of ways that people who like the project could get involved. You have to make that as easy as possible; it's just human nature to go along with something if you think it's okay. What we do, Joyce, is just try to make sure that the public engagement upfront captures as many people who wander through going, 'This looks lovely' as it does the people standing outside with signs. It allows us to designate particular projects for particular reasons.

One of the ones I'm very interested in is we obviously very much hope that the floating wind opportunity in the Celtic sea is something we can exploit. If that works, then we'll have ports all the way along the coast of Wales that might be the wind ports for that; they will require an enormous amount of consents in order to pretty much change the entire structure of what they have. So, we would want that to come into this process. And then all of the people who think that's a good idea along that coastline, we would want to have their voices heard, wouldn't we? So, that might be the population of south Wales, for goodness' sake, that was involved in that, or the whole of the north-west. You'd have to have a process by which a very large number of people could feed in views on that, including those who are very in favour of it. We would make sure that any developer that was bringing a project of that nature forward reached out to all of the groups who were likely to be involved. All of the environmental non-governmental organisations would obviously be involved in something of that sort. 

But then, on the other hand, Joyce, you can see, this process—. I want this on the record, Chair, so forgive me. We have in here a process for search for the disposal of radioactive waste. This is not the policy of the Welsh Government; this is the process. The policy of the Welsh Government would very much lead you to believe that if you went through that process you would end up with a large 'no' attached to it, but we have to have a process in place, and that would have to engage all of the people. So, if somebody wants to go through that process, they would have to engage all of the people, and for all I know, there would be some people out there who think that's a great idea. I'm not one of them; I'll just make that really clear. And that means I won't be able to be a decision maker in the process. I mean, who thought I'd set that up? 

Anyway, I really very much hope that our policies are clear enough in some areas that a developer would not think it was worth the time and effort to start the consenting process. But that's a very good example, isn't it, because you could go through all of that process and we would want an enormous amount of engagement across Wales of people involved in that. I just think that's a very good example the other way around. We, probably, all of us, think that's a bad idea, but there might be people out there who don't, so you'd want to find those people, wouldn't you? I think that's part of what it's about; it's about making sure that we have techniques in the pre-application stage that engage with an enormous number of people, and it may be that the applicant, as a result of that engagement, decides differently, decides not to go ahead, because, actually, the strength of opinion is such that they think it's not worth the biscuit. So, it depends what you're looking at, doesn't it?

Thank you. Huw, you wanted to come in.

Thank you, Chair. Whenever we consider a piece of legislation like this, we're thinking about what would a future government do with the powers that this gives, particularly when there are flexibilities within this as well. At the moment, the policy trajectory of this Government in terms of renewables is very, very clear. Similarly, there is no compelling narrative within this Government to do things such as fracking, or alternatively to reopen opencast mines or to reopen deep coal mines and so on. It seems inconceivable that some of those would happen, but it's not totally impossible. So, where would things like that fit into this process framework, and how would it make sure that communities and others were engaged with that if that were to come about? 

That's why I used the radioactive waste example. This is not about the policy. If there was a Government in place that had a policy that opencast coal was a great idea, then this process would be the same. The applicant would still have to go through this; they would have to do the community engagement. I would very much hope that the community engagement would be such that they'd think, 'Gosh, it's not worth it'. But the community engagement process at the beginning of this is designed to do exactly that; it's designed to get an enormous amount of community engagement at that point for the developer to gauge a number of things: 'Is it worth it at all?', 'How much do I have to modify the application to make it worth it?'; before they even start on the impact proposals, and so on, 'What are the concerns that people are raising?' So, it's a very important first temperature check, isn't it, of what the process will produce.  

But just to extend that into a different area, one of the things you mentioned in response to the Chair about flooding is there'd be very few flooding schemes that would fall within this. However, there might be ones that are so complex and raise such issues that they might be. I'd better declare an interest because there is a proposal in my area, but it's not to do with that proposal that I'm going to mention this. Hydrogen is absolutely something we need to be exploring and the application of it. You speak to many hydrogen engineers and experts, and they say, 'This is part of the decarbonisation future—we're not sure what it is, but it needs to be handled very carefully'. Some of those that come forward will be using existing technology but in novel situations. How does this Bill bind into things like that? Because you mentioned it with flooding.

It's the same thing, Huw. Basically, if it's a small local pilot production, it won't fall into this; it will fall into the local planning arrangements if planning consent is required. If it's a much bigger issue, then we could take a view that it is a significant infrastructure project for a number of reasons. We'd have to go through a process of just making that decision. And you do that in consultation with a local planning authority when a pre-application came in. So, we're in touch with our local planning authorities, and they would highlight to us something so novel that they thought, 'Gosh, I don't know what this is'. They do that all the time, actually, don't they? 

Yes, that's correct. We've also got to remember that we've also got the potential to call in applications under the planning system as well, and one of the criteria is, 'Is it a novel project?' 

Just to be clear, there are two routes. We could call it into this system if we think it is a significant infrastructure project, which is what I was saying, but if we thought it wasn't a significant infrastructure project but we still thought the local authority shouldn't be the decision maker for various reasons—

That's a helpful clarification. 

—we could call it into the normal planning system. 

And just one other really short question. Do we currently have a hydrogen policy statement? 

Yes. 

Thank you. I'm going to go away and look it up. 

Just a couple of questions before we take a break. All this has got to be done in 52 weeks now, or that's what being proposed in terms of the time frame for a decision. How did you arrive at the very rounded figure of 52 weeks? What's the science behind that, or is there? There doesn't have to be. But also then, obviously, there's an option to vary that through regulation—[Inaudible.]

Do you want to go through that, Neil? 

Yes, certainly. We've got an existing target of 36 weeks for DNS applications. When we looked into the cases that have gone through the DNS process, that has proved to be quite challenging. I think it's on the record that we have extended that in a number of cases, sometimes because we haven't got the information from the developer—[Inaudible.] Looking at this, we felt when we looked at the complexity, particularly when you get into an order-making process—a statutory order—a 52-week target was more appropriate. So, there was some work done to assess that. I think we're still going to see the simpler applications falling below the 52 weeks. [Interruption.] It doesn't have to take that long, but we may well see complex ones taking longer. So, the target is there to actually focus minds. We know what happens when there isn't a specific target, so that's why we've actually set the 52-week target to turn around from receipt of application and validation right the way through to a decision being issued.

We'd be looking to have a flex for that, though, that we could—if every single application in five years is done in 40 weeks, we might well reduce it; if every single application is done in 54 weeks, then, you know. What you'd like is to have exception reporting, so one application of all of them exceeded the time limit, or whatever, so we'll keep an eye on that.

Sure, okay. The Bill also provides flexibility for the examining authority to choose the appropriate procedure: for examining an application, it could be an open inquiry, it could be a hearing or in writing. Can you set out your thinking behind that flexibility and provide examples of when each would be appropriate?

Yes. Well, I think that's fairly obvious, isn't it, really? If it's not that complicated but it comes over the threshold, then it'll be done by written representations; if it's incredibly complex, has multiple issues and has excited an enormous amount of public engagement, then there might be a hearing or on inquiry. It's very much horses for courses, and so the idea of the process is to have a range of options available, which are suitable for a variety of installations. So, I think it really is just a common-sense thing. Basically, the more noise in the system there is, the more complex the process is, the more novel it is, the more likely it is to end up with a hearing.

And that comes back to the engagement and hearing—[Inaudible.]—early enough in order to decide which process is the most appropriate, really.

Yes. Yes, exactly.

Fine. Well, we'll break at that point, then, and we'll reconvene, so that we can start our meeting again at 10:40. Diolch yn fawr.

Diolch. Minister, I want to have a look at the revised role you envisage for local planning authorities and Natural Resources Wales in this new consenting process. What are the risks and benefits of removing those projects between 10 MW and 49 MW from the significant infrastructure project process and returning them to local planning authorities?

We just think that they're best placed to understand the benefit of a small energy production. So, the community energy example I gave earlier, for example, Jenny, that’s not a development of national significance even in the current system, has been our view, really. So it certainly isn’t going to be a significant infrastructure project. And as I said to you, if there was some element of it that meant that it was, for a particularly complicated reason, we could pull it back in. But we think local authorities are well placed to just cope with small community energy projects, which is effectively what that level is. 

Okay. Some local authorities are better than others at engaging with the public on planning matters. And it's once again back to: do they have either the resources or the skills to actually engage with communities in a meaningful way?

Actually, just because of the distribution of these things, some local authorities have hardly any, and some have one or two more, and they tend to develop the expertise. We do encourage the local authorities to share expertise, and there are some examples of authorities that share, for example, minerals experts is one I’m particularly aware of. So we do encourage them to share. We provide some support to authorities if they do have something that they’ve never dealt with before. And also, of course, they’ve got the ability to charge fees, and we’re very keen that fees are charged on a cost-recovery basis where possible. I’ve never understood at all why the public purse should reimburse developers for their planning fees. So, they should have enough resource, and this whole process is lifting some of the burden off them, of course. So, I'm pretty confident that they will be fine with it. Some authorities will hardly see any at all. I think that the average is not even one—. Half of an application a year is the average.

At the moment, but we obviously will need to speed up on these sorts of things.

But these are little projects, remember. These are little community energy project-type things. And again, because of the topography of Wales, some places will see more than others, won't they? So, we'll keep an eye on that. 

Do you mind if I just ask one brief question there? Have you done any work looking at the likelihood of maybe projects—? Energy developers outline their plans, and they come to talk to Members of the Senedd and other people about what they are hoping to achieve, and sometimes, openly, they say, 'Well, maybe we will take a few megawatts out so that it goes into one particular regime and not the other, because we are more confident that that is robust or will give us what we are looking for, really'. So, have you considered whether that will have an impact in—?

Yes, but this is 10 MW to 49 MW. It's tiny.

I know, I know. Yes. But there is a possibility that people might intentionally come below in order to keep it—.

There's also the UK and our regime, of course, remember. So, that's the one that we think is more likely to be gamed.

Yes, and that's the one that's been quoted to me.

I suspect, actually, that they might well limit it and come into ours rather than shove an extra five in and go into—

But you don't think that that would be an issue at this end of the scale.

No, it's really small, isn't it?

Yes, I know. Okay, fine. Thank you. 

Okay, so, once again, you already mentioned that planning authorities or NRW, depending on the nature of the proposal, will be required to provide a local impact report and/or a marine impact report, to aid examination of an application. How will this differ to the responsibilities under the current regimes?

So, the current regimes are really, really complicated. So, we have got things like the Harbours Act 1964 and the Electricity Act 1989 and various other—. Goodness, they have all got a headache, listing out all of these ridiculous, archaic regimes, and they have either no clear process at all, no timescale for consultation or no timescale—. Well, they are all over the place, is the truth of it.

As I have said a number of times already, at the moment, you might have to engage in a number of multiple applications, and so on. So, it will simplify all of that. They already provide local impact reports on development of national significance applications, so the Bill just continues the requirement for them. So, this is not something new; they have had to do it for a little while now, so they will be used to doing that. And as I say, we think that it will reduce the amount of work that they have to do because it simplifies the process, really, and also the cost of producing the report is recoverable through a fee. So, they should be able to tool up, as the jargon is, to be able to meet the demand.

Okay. I think that that's clear. So, you are expecting that they won't need additional resources, or if they do, they need to add it to the fees process.

Yes. So, obviously, there would be a little lag in that system, so nobody can really quite guess where we are. But we have got lots of historic data about what's coming forward, and in terms of the big renewable agenda, we have got a pretty good idea, from conversations with developers at the national grid and others, about what's likely to be in the pipeline. So, it's not like it's a complete mystery to everybody where these things are. And remember that, in 'Future Wales: the national plan 2040', we have got areas of Wales where we are trying to direct particular developments as well. We know where that is, obviously, so we can talk with local planning authorities accordingly.

Okay. I just want to ask about the enforcement responsibilities of local planning authorities on land, and either a Welsh Government enforcement officer or Natural Resources Wales, depending on the proposal. Clearly, it's crucial that we have enforcement. If an organisation has agreed to do 'X', we need to ensure that they are going to do 'X'. So, how will the enforcement responsibilities be rigorously carried out? 

So, actually, we had quite a long conversation, didn't we, during the prep for the Act. We obviously want to have a unified enforcement system that's simpler and easier to understand. So, we have based the enforcement provisions on the development consent order regime, which is in the Planning Act 2008, and we have added in the temporary stop notices from the Town and Country Planning Act 1990. We had a very long and convoluted conversation about all of this, which I remember well.

So, the LPAs are already the enforcement authority on land. Marine enforcement officers are responsible for the inshore regime under the Marine and Coastal Access Act 2009. So, they're already in play for that, so we're imagining that they will continue to do, but in a simplified and much more straightforward system. So, we've deliberately used enforcement regimes with which they're familiar and that they'll be used to operating, and they will apply right across the whole regime.

Okay, but we've already seen with things like phosphorus in rivers and seas how complicated this can be to actually identify the source and then—

That's a very different problem. So, this is enforcement of the consent, so this is where somebody develops something that they don't have consent for, strictly speaking, so that's much more obvious than trying to figure out who's pumping stuff into a river, which can be incredibly complicated. So, it's much more straightforward, and, obviously, at the same time, if you've got a developer who's built an entire windfarm and doesn't have any consent, it's going to be pretty obvious that they're doing it.

I think it's probably fair to say that, in our experience of both the developments of national significance regime and the development consent order regime that operates in England and Wales, most developers are investing a lot of money, so they tend to not fall foul of the same enforcement problems as a normal person would under the planning system. I think we've seen about one case where there's been an enforcement matter raised in relation to a DNS scheme, and we're not aware of any DCOs where there have been enforcement issues.

Nevertheless, the stick needs to be in evidence to ensure compliance, does it not? But you're content that this process is going to give you that rigour without vested interests within other parts of the local or planning authority going easy on somebody.

Yes, so this is a much more straightforward regime, Jenny, and in fairness to the local authority, at the moment, trying to decide what exactly has been breached and under which regime they should try and enforce it is a real headache, whereas this is a single consenting regime, so you either have done it or you haven't done it. It's pretty straightforward, it doesn't require a huge amount of investigation to discover that you've put up 400 wind turbines when you had consent for three. It's fairly straightforward, as Neil said.

And, also, I think the significant investment involved is something that—. It's not to be underestimated how much they don't want to be involved in ongoing litigation with that amount of investment. You're talking about hundreds of millions of pounds for some of this stuff.

Okay, but you can see the cynicism that's generated by house developers reneging on previous commitments and saying, 'But we haven't got the money now.'

Sure. But that's a local—

I appreciate that that's not in strategic development, but it produces that level of cynicism.

I think that's one of the important things we have in this regime. The planning system has a system of enforcement where the offence is only created a long way down the line. For our system here, the actual offence in terms of litigation, is created from the outset. It is fundamentally different from the planning system enforcement in that regard. I think that's quite an important part that we have, given the scale of the projects we've got.

Thank you.

Yes, okay. Thank you for that. Huw.

Thank you, Chair. Just taking that very point on board, before we move ahead to policy statements, you've recently been through a baseline analysis with NRW and so on to ensure more, fuller cost recovery of a range of services that they provide, and so on. Now, this is different, I accept that, but in the marine environment, this is an interesting moment in time, because in terms of consenting enforcement, that significant investment that you refer to, Minister, which is significant, may be—. Have you had those discussions about how you fully resource any additional adequate measures to enforce the marine planning, whether it's through Welsh Government funding marine officers or NRW to make sure that this is done? Now, I take your point that the last thing the developer wants to do is do something wrong within this. However, this is an opportunity with a blank sheet of paper, with the opening up of the Celtic sea, et cetera, et cetera. So, have you had those discussions, or will you?

We just did a complete end-to-end review of the marine licensing process with NRW, and out of that has come a range of issues, one of which was what are the fees that can be charged. So, I don't want to go into controversial areas here, but you may know that NRW has just announced a whole series of uplifts in its fees, because it's going to a cost-recovery basis. It has not done that for a very considerable amount of time, so there's quite a big jump in some of them. The other thing to say, Huw, is that a lot of the big offshore wind projects that we're talking about in the Celtic sea will be not in the inshore waters, which is where we're talking here. They're likely to be smaller projects anyway, and of course, they'll have to go through the whole of the environmental impact assessments and all the rest of it at the same time, so it will simplify that process for smaller—

But the servicing of them will be coming, hopefully, from our Welsh ports, which will have impacts—

Well, I very much hope so, and then, of course, that will come into this regime.

Okay, thank you. Let me turn to the policy statements, and where they lie in the priority of things as well. The Bill says that applications must be decided in accordance with the relevant policy statement, the national development framework, 'Future Wales', or the Welsh national marine plan.  Where have you identified the gaps? We touched on this a little bit earlier, but where are the gaps now in policy statements? If this is meant to give certainty, where have you said, 'Well, we haven't got that certainty, because there's no policy in that area'?

So, we're not aware of any policy gaps at the moment. Applications must be determined in accordance with the national development framework for Wales—or 'Future Wales: The National Plan 2040', as we call it—the marine plan, and its associated policy statements. There is a local impact report, et cetera, but we're not aware of any policy gaps. If the committee is aware of any, then please do say, but we've done an analysis; we're not aware of any. We're not currently preparing any additional policy statements as a result.

Okay. So, that pre-empts my follow-up: when are we going to see the full suite? Because, according to Ministers, the full suite is already there, which is fantastic. [Laughter.]

Sorry about that.

Okay. Well, let's turn on to the interesting thing of where these are prioritised, amongst things such as the NDF or the marine plan. So, the Bill states that where a provision in a relevant policy statement is incompatible with the provision in the NDF or the marine plan, the application must be decided in accordance with the relevant policy statement. So, what's the rationale for giving primacy to the policy statements over what many people would regard as key policy directives, the NDF and the marine plan?

So, that's just about what's the swiftest route to address the issue that's emerged, really. So, policy statements are more reactive and quicker to implement on a specific policy. There have been lots of examples of this over the years, haven't there, rather than making amendments to the national framework or whatever. So, the national development frameworks are reviewed every five years, but we can all think of lots of examples where something's happened inside the five years. So, the example I'm given here is that, five years ago, fracking was an emerging technology not sufficiently covered by planning policy, so we needed to have a quick policy for that. There might be other new and emergent technologies that fall into that area that we haven't thought of yet. As I keep saying, my imaginary widget might appear over the horizon, and we might need to do something about it.

So, yes, it's an interim measure, isn't it, to just bring the thing up to date while we do the five-year review, and then, in the five-year review, it'll be incorporated into the plan. And I'll have to get one of the professional planners to tell you how the hierarchy of material considerations work.

That sounds very logical and compelling, because it's talking about where technology changes, or there's something that's omitted from the policy framework, and we will never know everything that's coming down the line, but where we use this phraseology, a relevant policy statement is incompatible with provision in the NDF or the marine plan, it's left me thinking why on earth would anything, including a change in technology, be incompatible with the marine plan or incompatible with the NDF, because the NDF and the marine plan are of their very nature very well-thought-out, holistic, coherent plans. Surely it's not an omission; why would they be incompatible?

We don't think they will be, is the truth, but we have to have the possibility that we somehow didn't think of everything in all of these plans, and that something happens that might be inconsistent. But we don't actually think that we're in that position, nor do we think the national development framework and the marine plan are inconsistent either, because a lot of work went into making sure they weren't. 

So, if the—Mr Hemington might want to come in on this—but if an emerging policy statement trumps this, do you then go back to the marine development plan or the NDF, and actually say, 'We now have to adjust that, in light of—'?

Well, in the review.

Yes.

Did you want to add anything, Mr Hemington?

No, that's correct. This is belt and braces here; this is to deal with the unknown eventualities, essentially. But again, it's the point that you made very clearly: it's only about where there is a conflict between them. In most circumstances, we would not expect to see a conflict.

Right. That's great, thank you.

And, just to be really clear, if that happens, then in the following review, you'd expect the major document to be reviewed accordingly.

That's very clear. Thank you.

Okay, thank you. Joyce.

If I can, I just wanted to rehearse it on the same theme. We don't expect our policies, as they currently are, to be in conflict, but we won't be in Government forever—possibly we will; we've been there for 99 years. [Laughter.] But the point is, and it's the same point that Huw raised earlier really, that whilst our policies are good and well-intentioned, there might be another regime where they're not so, and the conflict could be considerable. We could have, for example, oil exploration in six years' time. How would this deal with a change of policy? I'm trying to reverse it. So, if a policy changed.

So, it would be the same, Joyce. So, if you had a sudden change of heart or change of Government with very opposite proposals, then they could put policy statements through that contradicted the national framework, while they reviewed the national framework. But you'd expect any incoming Government with a completely different policy agenda to promptly review all of its baseline plans. So, if you were an incoming Government and you hated the national development framework, for example, then one of the first things you do is look to review it. And in the meantime, you might put sticking-plaster policies in place that allowed you to proceed on that basis. This Bill process would still be in place; it doesn't change the policy. So, the process of consenting would still carry on regardless and then the policy framework is—. An incoming Government obviously has the chance to change its policy framework, so—.

Okay, I'll go on to what I was going to talk about and it's the infrastructure consent orders. And the Bill states that in certain circumstances the infrastructure consent order must be contained within a statutory instrument. Could you explain why that's necessary and give us an example—

I'm afraid you're doing that, Neil. [Laughter.]

Okay. It's in a statutory instrument, essentially, when it fetters individuals' rights and the primary one of those is where compulsory purchase goes along as part of that process.

Okay. And it also says that the Bill provides for the inclusion of secondary consents—and we talked about the marine licence; that would be one—within the main infrastructure consent. How will the new process ensure that the secondary consents are assessed with the same rigour as they would have been if they'd been assessed separately? 

So, that's about the hierarchy of the decision-making process. So, again, Neil, I'm afraid I'm going to defer to you on that.

Yes. That's fine. So, any secondary consents that are either deemed or extinguished as part of this process will have, as they do now, full input from statutory consultees. So, that will happen, so there'll be no change there. Obviously, the inspector at the time will consider all of the consents with the same rigour as they do now. The main benefit is that you're considering them as one rather than the multiple times. So, that's really important.

It happens now already. So, if you look at developments of national significance, for example, there can be secondary consents. Probably the most common one we see is common land consents alongside the planning permission for wind farms. So, it does happen. From our review of the decision-making process, it's clear that all of the matters have been given proper due consideration. So, we see no reason why that will not continue. So, that's probably a good example. 

The other one, I suppose, which is a good example—. It's not one that we deal with at the moment, but if you look at development consent orders where there's a deemed marine licence, that goes through a rigorous process when that licence is issued alongside the DCO. So, we've got every confidence that we have experience of undertaking this process and that will carry on with this new regime.

Thank you. You touched, again, on compulsory purchase and I know, Minister, you offered earlier on maybe that you could provide a little note—or maybe a long note—for us on that. We would appreciate that, I think, given that it is something that does come up quite often, really, in our deliberations. Thank you. Right, Delyth.

Diolch, Cadeirydd. Minister, I'm going to go into a little bit more detail on subordinate legislation and the rationale behind some of the decision making. You've acknowledged in the Siambr already that a lot of the detail of the new consenting process will be left to subordinate legislation to allow for greater flexibility in the future. Could you please give us some examples of where you think that flexibility is going to be needed and explain why that wouldn't be possible through the inclusion of those provisions on the face of the Bill? Again, I know this is building on what has already been said. 

Yes. So, if you use the pre-application process as an example here, we'll set out in the regulations the technical details: the types of pre-application services that should be provided, the consultation arrangements, the format of applications, exactly what the applicant should put in by way of environmental impact assessment—all sorts of stuff will be set out in the regulations. One of the big problems we have at the moment is the variability of the applications that come in and the difficulty of improving the application to the point where it can be properly dealt with. So, I'll want to set out in some detail what the applicant has actually got to produce in order to make a valid application, for example.

And then what we want to be able to do is we want to keep that under review. So, once we've done, I don't know, five of these, we might think, 'Well, actually, do you know what, there's a better way to do it', and we need to change the regulations to include some technology or other or some particular type of data collection, data monitoring or data spreadsheet arrangements, or whatever. They're quite complicated, some of these. I'm sure you've all seen one of the EIAs, for example. So, we want to have the flexibility to be able to move with that. 

The technology for this is changing all the time. So, some of the webcam monitoring that you see on some of it, we might want to be able to specify some of that, for example. If we put that on the face of the Bill, it will be out of date within weeks, really. So, we want to be able to keep it up to date, and we want to be able to make sure that we take advantage of emerging technologies. So, it may well be that there are better data-sharing arrangements that we can put in place, for example, or—there is a whole range of things that we can all think of. 

We also want to co-produce some of this stuff with people with an interest in it. So, the developer community but also our local authorities and with Planning Aid themselves and other people, so that we can make sure that we've got the best out of those regulations. Chair, I'm very happy for the committee to say that they'd like them to be under particular affirmative procedures, or whatever. I'd be very interested in the committee's views on some of that. I know that Huw's committee will certainly be taking a view on some of that. But, I genuinely do think that we don't want to get ourselves into a mess where we've got a process Bill that ties us to particular things that, within even the life of this Senedd, will be just out of date.

Huw. [Interruption.] Sorry. Huw, just on this.

Sorry, Delyth. Can I make an observation and perhaps ask a question to the Minister? It does seem that Welsh Government is consistently advocating a slightly unconventional-by-Westminster-approach way of doing legislation, which is to have less on the face of the Bill and to proceed more with subordinate legislation—regulations, subsequent consultations. If that is the case, and that might actually tie in, by the way, with the ways of working with the future generations and well-being Bill aspects of co-production and not having everything set in stone on day 1—this causes me problems with my other hat on, of course, as the Chair of the Legislation, Justice and Constitution Committee—then maybe there's a piece of work to be done by you and the Counsel General and others to lay out exactly why that approach fits, because we're hitting this on a number of levels, that they're essentially more what we'd regard as 'framework-y' if not classic framework Bills. So, just be bold and lay out together as a Cabinet why you're taking this approach.

So, I think there's a big difference, myself—sorry for the constitutional nerdery—but I think there's a big difference between a framework Bill with Henry VIII powers in it that gives the Minister executive functions to do various things, and a headline Bill with a series of regulation-making powers in it, which fully engage the legislature. I think there's quite a significant difference between those two, and this Bill fully engages the legislature in setting out the arrangements.

What it does is it gives flexibility to make sure the thing is relevant at all times. I'm not giving myself the power to specify what should be in an application. We could write a Bill like that, but I don't think that's the right way to do it. There's a big difference, I think, between a framework Bill, which, traditionally, in the Westminster sense, gives the Executive a range of powers, never to be scrutinised by the legislature again, and this kind of thing where what we're saying is that, effectively, there will be a series of processes, in which Members will have a big interest in what they look like, but will need to be refreshed with probably quite a lot of regularity, particularly in the early days.

The other thing to say is that it's not a framework Bill in the true sense of the word either, because if you look at section 31, for example, we've actually specified some things, which we're absolutely certain will always be necessary. We're not doing it for the sake of it.

Sure.

The other thing we looked at as part of this, and you mentioned it previously, was Westminster Bills and the experience from the Planning Act 2008 and the changes that they're making over the border now to that, is that there was too much on the face of the Bill. It led to a fossilised system that created delays and uncertainty. We're trying to strike the right balance between the two, as the Minister said. Some things we know we're always going to require, so we put those on the face of the Bill. There are other areas where there is discretion or there are different ways of doing things, which we'll set out in regulations.

Even on the things we require, just to say, we don't say that they have to be on parchment and signed or anything. Actually, in all fairness, there have been earlier Bills where it actually says things like, 'Three copies of something or other to be given to—.' So, you know, it's very important not to tie yourself into a system that becomes very outdated very quickly.

Okay, thank you. Back to you, Delyth.

Diolch. If you could send us some more information, please, on what you were setting out about how you've engaged with stakeholders about how you're making these decisions about what's more appropriate for which powers, that would be really useful, please. I think a number of the points have been covered here, but in the explanatory memorandum, it says that the Welsh Government will consult on the content of subordinate legislation where it is considered appropriate for that to happen, and then that the Government will decide the precise nature of the consultation when the proposals are formalised, but that seems to be quite a cumbersome, or at least quite a labour-intensive, process. Do you have a programme, please, and a timeline for carrying that out?

No, not really, Delyth. What we're trying to do is we're trying to make sure that we've got things that we think will change in the regulations, or are likely to change and need review in the regulations, and things that we think are very, very unlikely to change on the face of the Bill. I actually welcome the committee's views on some of this. We've mined a lot of the historic data that we've got to come to the conclusions we've come to, but the DNS process hasn't been running that long really. We've looked at how that worked and then we've looked at what we think this will be able to do, but we'll want to have an iterative process with that.

As I said earlier, if we get a lot of feedback through Members of the Senedd or local planning authorities that local citizens are finding it really hard to engage in a particular process, it may be that we will want to put further requirements on people in the pre-application phase to do something we're not currently thinking of. I don't know if that explains it better, Delyth, but it's about an iterative process for how we do it. I'm not trying to suggest that we'll be bringing regulations forward every three months, but I would suspect, over the course of a five-year Senedd, that you might see several of these change as the process beds in. Is that helpful?

That's useful, thank you.

Thank you. I just wanted to ask a couple of things about costings. The regulatory impact assessment outlines—. Well, it doesn't, actually. It doesn't quantify the cost to communities. Now, I understand, obviously, that communities differ and projects will differ, but I suppose that's true of all aspects of costings here. You did tell the Finance Committee that costs will reduce for communities even if we don't know what they were in the first place. You can explain to us, maybe, what work have you done, then, to try and understand that position in terms of consulting with communities and trying at least to assess or understand, to some degree, whether there would be savings for communities. 

So that's based on the things I've been saying already about the number of times you've got to engage in a process. So, what we're assuming—. We haven't got any real hard data on how much it costs a community to engage in a DNS process, really, and, you'll know yourself, that this goes from very well organised community groups who've got a barrister on board to concerned individuals writing letters, and it takes up some of their time and energy and so on. So, it's really hard to gauge, isn't it? But we do know that, where people are trying to do that, they often have to do it multiple times and this will prevent that. This will give them a point in time in order to be able to concentrate their energy, and we think that that, therefore, is a saving, although—. You can see why we think it's a saving, but, in all honesty, we have no way of knowing how much community groups spend on engaging with planning. We continue to fund Planning Aid Wales; we've got a little bit of information via them, but that's—. 'It depends', as my old law professor used to say. He can be given credit for—. He, actually, used to say that all the time,

'Write, 'it depends' in the margin, you get marks for that'.

But, genuinely, Chair, if there's a well-organised group of people who don't like something, then, they'll put more energy and effort into that. They might put money into it, for example. Others will be simply giving up time and effort and local domestic resources. It's very hard to gauge. 

Yes. Okay, okay. Thank you. The RIA also says that there’ll be 'significant benefits' over and above what can be quantified financially, because of the more streamlined and unified consenting process. So, can you set out maybe what these significant benefits are and how they’ve been identified, as you've developed the Bill?

Again, it's just about a streamlined process. So, at every point in this process, each of the organisations or statutory bodies or statutory consultees that engage, has to engage a single time, rather than multiple times, and on that basis, the amount of engagement reduces. There will be some increased costs for some organisations. There's an increased cost for the Welsh Government, through their Planning and Environment Decisions Wales, for example, because more of the decisions will come in to us, but there will be a conversant decrease in costs from the local authorities, so that's the basis of it. And this is a process. This does not include the costs of the windfarm or the flood defence. So, it's relatively small, the cost of a process in this regard. So, we've done our best with that. I don't know if you want to add to that, Neil.

Just adding to that, particularly for developers, what we haven't been able to cost is the cost of certainty. So, how long will it take for you to get a decision, either way? It's quite often the thing developers want most. So, obviously, we can't cost that, particularly if they're borrowing money to actually fund the project as well. There are a number of things on that side that are difficult to cost besides the community costs as well. I think we've given our best estimates of the costs. We've gone into a methodology. The costs of this are not huge compared to a lot of legislation, and, as far as our costs are concerned, we're operating on a full-cost-recovery basis. So, again, that becomes the cost to the developer rather than a cost for Welsh Government. 

And we've asked the developers, but, not surprisingly, they are quite shy about sharing their costs with us, so it's a—. 

There we are. Okay. Thank you very much. Joyce. 

I'm going to finally ask you about correspondence with the UK Government. You said in the Chamber on 13 June that correspondence with the UK Government on aspects of the Bill that require Secretary of State consent, I quote,

'has not been a happy process'.

Could you tell us if you're smiling now? And could you also give us a specific scenario where that consent would be required?  

Yes. This has not been fun, it has to be said, for a variety of reasons. But we requested the transfer of legislative competence to the Senedd for consenting of energy generation stations offshore between the edge of the territorial sea and the edge of the Welsh zone, which is an area between 12 and 200 nautical miles, and which clarifies the Senedd's ability to legislate in respect of energy storage, because it's not at all clear at the moment. I'm very sorry to say that I've yet to receive even an acknowledgement, never mind a response, from the Secretary of State for Levelling Up, Housing and Communities to either of the letters I sent in relation to my request. We've been unsuccessful to date in getting relevant UK Government officials to engage on this matter. I've also asked the Secretary of State for Wales, and that has also not been very fruitful. So, it's very frustrating, really, I'm afraid. No doubt, we'll write again after this committee, and maybe the Chair would consider the committee writing as well.

We've also sought to engage the UK Government to secure Minister of Crown consents for certain provisions, and I've shared the letters with the committee on all of the Minister of the Crown consents. So, that's for conferring functions on reserved authorities like the Coal Authority and the Maritime and Coastguard Agency, in regard to consultation requirements, cost recovery and functions as part of the consent Order, and placing a function on the Secretary of State, where disclosure of evidence in public would be about national security, which is a standard thing in planning legislation. We've also consulted with the Minister of the Crown on provisions removing the Secretary of State functions in relation to some of the Transport and Works Act 1992 things. On those matters, UK Government officials are engaged, and there are ongoing discussions, because Minister of consent things are a much more normal part of the legislation process. But on the clarification of the devolution settlement, and the complexity of [Inaudible.] it's very disappointing indeed not to have had any engagement on that. It does make it much more complicated for them, as well as for us. So, it's very hard to understand quite what the issue is.

And, then, I'll digress as well, Chair, and say that we've also been engaged in the energy Act, and we'll be shortly be bringing forward a legislative consent motion, where you'll be able to see, in some detail, some of the frustrations that have been going on in the discussion with them, because it has not been straightforward in any way. 

What are the consequences of this for us?

So, it simply means that, instead of a complete one-stop-shop, we would have to write and ask the various non-devolved consultees to consult. They would do so, but they would be unable to recover their costs appropriately as part of that, and it would simply be another stage in the process rather than a streamlined process. So, it's not fatal, but it's clearly not optimal either. And it doesn't make any sense. There's no—. It's very hard to understand what the problem is with it, really. So, anyway—. But we continue to ask. 

What's the timescale in which you need a response from the Secretary of State?

Well, by the time the Bill finishes its passage through the Senedd. 

Okay. So, working back from that, what's the timescale if you still fail to get a response, in which you take this through the new three-tiered committee structure, and, if necessary, to dispute resolution?

Well, we're in the process of discussing with the Counsel General and the First Minister escalation processes. I can't go into that.

Okay. Well, that in itself is interesting, because you would expect—and in case the Secretary of State is ever listening to the transcript of this—you would expect good inter-governmental engagement, and if there were problems, the problems to be raised in good time, between different Governments, including requests from them to the Welsh Government about, 'What are you playing at?' And if that is not happening, there is now a structure in place that has not yet been tested to resolve this matter.

So—sorry, Chair—it might be that we want to express a view if we get to the autumn when we return and we find this isn't resolved, the committee might want take a view ourselves on writing to the Secretary of State and saying, 'Are you seeking to resolve this?'

So, briefly, on the Minister of Crown consents, we are having positive conversations, so I'm hopeful they will be resolved in good time. 

Great, good. 

But that's not the—. It's the devolution points that we're having absolutely no engagement on at all. 

Okay. And we're grateful to you for sharing the correspondence with the Secretary of State for Levelling Up, as well. 

Just on the Minister of Crown consents, that's actually by Stage 3 that we would need that, because if it hasn't come through by Stage 3, we will have to put amendments into the Bill to make sure that it functions without them. But there's no reason to think that we won't get those. On the devolution point, which would be very helpful indeed, there's been radio silence. 

Yes, okay. Well, I'm sure we have a view on that as a committee as well, which I'm sure will be expressed. There we are. Diolch yn fawr. Okay, any further questions to the Minister, because I think we've exhausted the list of questions that we were hoping to cover? There we are. Okay. 

Diolch, Cadeirydd. 

Diolch.

It's just a point in the additional information provided by the Minister on the Environment (Air Quality and Soundscapes) (Wales) Bill around prosecutions, and I wondered if the Research Service could give us a bit more information about the nature of the offences, just to give us a sense. Because we're talking quite large sums of money, and I think it would help inform how we're going to enforce this Bill once it comes forward.

Yes. Okay. So, this is item 4.6—

Yes, that's right, yes.

—which is the correspondence with further information. We'll ask the research team to provide us with a note on that. Great. Diolch yn fawr.

And happy to accept everything, then.

Yes.