Thursday, 21 December 2017

The need for real planning reform – Wales leads the way


I have previously made the point in this blog that Welsh planning law has been steadily diverging from the English legislation for a number of years now, to the extent that it is difficult to keep up with current Welsh planning legislation while at the same time keeping abreast of the constantly changing legal landscape that influences town and country planning in England. It is solely for that reason that I have found it necessary to confine this blog to planning law issues in England alone. I would not wish to imply that I consider that Welsh planning law is not worthy of attention; it is just a question of available time, which in my case always seems to be in short supply (!)

I do, however, wish to draw attention to an important Consultation Paper which was recently published by the Law Commission, entitled “Planning Law in Wales”. This is an impressive document, running to 493 A4 pages. I would encourage those readers who deal with planning law in Wales to study the document’s recommendations and respond to the consultation, which ends (very fittingly) on St David’s Day, Thursday 1 March 2018. I would also urge all my other readers, even if they may not have anything to do with town and country planning in the principality, also to download the consultation document and study it, for the reasons I will explain below.

The consultation paper and summary can be downloaded by clicking on this link: https://www.lawcom.gov.uk/project/planning-law-in-wales/ and comments can be sent to planning_wales@lawcommission.gov.uk

So why do I think this consultation paper is so important? The major reason is that, although this paper applies only to Wales, the issues it discusses are equally applicable to planning law in England, and the authoritative analysis of these issues in this consultation paper could well be a precedent for a similar exercise in England, which could lead (I hope) to a long overdue consolidation and codification of both our primary and secondary legislation relating to or affecting town and country planning in this country.

As the consultation document points out, an extensive system of primary and secondary legislation has grown up, much altered by successive governments of differing political persuasions in response to new political pressures and priorities. This legislation is supplemented by a mass of policy guidance of various kinds, both national and local. As a result of this evolutionary process, the law that governs the planning system – contained in Acts, Regulations, Orders, Rules and directions – is now exceedingly [I would say excessively] complex. We currently have no fewer than 30 Acts of Parliament in England alone, all or part of which contain provisions relating to town and country planning, and around 150 pieces of secondary legislation that determine how the planning system operates in detail, as well as national and local policy documents.

The resulting mass of primary and secondary legislation has grown inexorably and to no particularly obvious pattern. Following the first comprehensive Town and Country Planning Act in 1947, the relevant law and Government policy could be contained, along with commentary, within a single loose-leaf volume (originally entitled the Encyclopaedia of Planning, Compulsory Purchase and Compensation). Seventy years later, the “planning” element of that work has now grown to ten volumes. [Most of us have long since given up trying to use the paper version of the Encyclopedia, and now use the online version instead. I have some fairly major reservations about the content of the Encyclopedia, but that’s another subject!]

Many of these Acts and regulations have been the subject of judicial interpretation in the courts over the last 70 years. And the whole system has been the subject of numerous pieces of guidance, produced either by central government departments and other public bodies or by relevant professionals or others. The law is difficult enough to navigate for specialist professionals, who also have available online resources. For non-specialists, let alone members of the public, the law – albeit simple enough in principle – is now almost impenetrably complex in practice.

The body of judicial authorities is now formidable, and significant judgments badly needed to be codified (i.e. taken on board in primary legislation). I have in mind, examples such as the concept of the planning unit, and the rule in Burdle; there are a good many others. As a law student, I recall studying the Sale of Goods Act 1893, which was the result of just such an exercise of codification. If it could be done in the 1890s, it can certainly be done in the 21st century!

As the consultation paper points out, one of the problems, even within the primary legislation, is that some provisions are in the four main 1990 Acts; others are in amendments to those Acts; others are in new provisions inserted into the Acts; yet others are in freestanding statutes outside the 1990 legislation altogether. So, for example, the duty to make planning decisions in accordance with the development plan – which is a fundamental principle of the system – is in section 38(6) of the Planning and Compulsory Purchase Act 2004, and not in the 1990 Act. Indeed, it is noteworthy that of the numerous duties laid upon planning authorities when determining planning applications, only two are in the 1990 Act itself.

I have hardly scratched the surface of the introductory chapter of this important consultation paper. I cannot attempt to summarise all 493 pages, and so I strongly commend the paper to all my readers. The consultation paper is unsigned, in the sense that its authorship is not stated on the face of the document. The team has in fact been led by Dr Charles Mynors, a well-known and highly respected member of the planning bar, who is not only a very experienced planning lawyer but is also a chartered town planner. He is also the author of several authoritative and extremely helpful planning law textbooks. This consultation paper is yet another impressive achievement.

This is probably my last blog post of the year, and so I would like take this opportunity of wishing all my readers a Merry Christmas and a Happy, Healthy and Prosperous New Year, or as they say in Wales, Nadolig Llawern!

© MARTIN GOODALL

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