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CHAPTER 1

History and Structure of Devolution

INTRODUCTION

For present purposes the formal process of devolution in Wales starts with the Government of Wales Act 1998. This established the National Assembly for Wales and made provision for legislative and executive powers and functions to be exercised within the devolved subject areas. One area of devolved responsibility was town and country planning. The Assembly held its first session on 12 May 1999 and the Act was brought into force progressively by a series of six commencement orders from 1998 to 2001. Key functions were transferred by the National Assembly for Wales (Transfer of Functions) Order 1999.

The current position is that new legislation in planning may be enacted by Acts of the National Assembly for Wales, statutory instruments are made by Welsh Ministers subject, where applicable, to approval by the Assembly, and ministerial functions generally in the field of planning are exercised by Welsh Ministers. The national body for planning guidance is the Welsh Ministers and policy statements and circulars are issued by them. Certain functions, notably development consent relating to nationally significant infrastructure projects and powers regarding the Community Infrastructure Levy, are not devolved and remain exclusively with the UK Parliament or UK Ministers.

The Planning (Wales) Act 2015 is the first Welsh Act in this subject area. It amends certain parts of the principal planning Acts and continues the steady progress toward a distinct Welsh planning system. It therefore helps establish a central part of the body of Welsh law on planning although, of course, the framework remains UK legislation and many important provisions apply equally to England and Wales.

The Wales Act 2017 makes significant changes to the devolution settlement. 1.4 The major changes are in the constitutional arrangements and the scope of devolved powers generally rather than in the practical operation of the planning system but in planning terms the changes will, in particular, affect responsibility for the Community Infrastructure Levy. The text here was written before the Act became law and deals with the position before its enactment and operation but, where essential, reference has been included to the effect of the Act in anticipation. Looking further ahead, significant change in land use planning may be anticipated with consideration of a codifying Planning Act. The Welsh Government has for some time indicated a desire to move towards consolidation of key legislation in this area and it is being advanced in the current programme of the Law Commission. Its work is at an early stage but is also referred to below.

This book is not a study of constitutional law and reference should be made to a specialist text for that purpose. However, to understand the law relating to planning in Wales, and in particular to understand the references to the various sources of law and policy as now applying, it is necessary to understand the historic and constitutional position. The position now established is summarised below at paragraphs 1.29 — 1.33, although, as stated, further devolution legislation will become operative and is referred to in summary. More detailed consideration of the scope and exercise of the specific devolved powers in connection with planning will be found in Chapters 2 and 4.

Following consideration of the process of devolution below, the following chapter considers the main elements of the Planning (Wales) Act 2015 and seeks to place Welsh planning law and practice in its UK context. The text then considers the law applicable in Wales and the key statutes, namely the Town and Country Planning Act 1990, the Planning and Compulsory Purchase Act 2004, the Planning Act 2008 and the Planning (Wales) Act 2015: the first two of these are referred to as TCPA 1990 and PCPA 2004 respectively in the text below.

HISTORY

Constitutionally Wales is part of the United Kingdom. The legal union of England and Wales dates back to the Laws in Wales Acts of 1535 and 1542. Until the Welsh Language Act 1967 indeed a reference to England in a statute included Wales.

Geographically Wales is defined in the Interpretation Act 1978, Sch. 1 as the administrative areas created by the Local Government Act 1972, s. 20. These are the twenty-two unitary authorities defined as principal areas (counties or county boroughs) now established by virtue of the Local Government (Wales) Act 1994. In the Government of Wales Act 2006, Wales includes the sea adjacent to Wales as far as the seaward boundary of the territorial sea. Article 6 of the National Assembly for Wales (Transfer of Functions) Order 1999 makes specific provision for the sea within the Severn and Dee estuaries adjacent to Wales and the Government of Wales Act 2006, s. 58(iA) excludes the transfer of ministerial functions exercisable in the Welsh zone beyond the seaward limit of the territorial sea. For practical purposes in planning, therefore, the local authority council boundary is the boundary.

The power to pass primary legislation, that is, the legislative competence of the National Assembly for Wales, is now governed by the Government of Wales Act 2006 by reference to defined subjects listed under the headings in Schedule 7 to the Act. Heading 18 in Part 1 is 'Town and country planning'. The UK Parliament retains power to legislate on any matter whether devolved or not but it will not normally legislate on a devolved matter without the consent of the Assembly.

Historically legislative power was in the UK Parliament alone although it is necessary to refer to the territorial application and commencement date in Wales of the UK laws and the express terms of the text to confirm the specific operation of individual provisions in Wales. England and Wales is a single legal jurisdiction and Acts of the UK Parliament and of the National Assembly for Wales extend to the whole jurisdiction but this is not to be confused with the question of whether a particular provision applies in the circumstances in question. In addition, UK ministers exercised executive powers throughout Wales. Separate Welsh departments within the UK government existed from early in the twentieth century, most notably the Welsh Office with a Secretary of State for Wales, which was created in 1964 and survives in a form today.

The Government of Wales Act 1998 created the National Assembly for Wales and made provision for the transfer to and exercise of functions by the Assembly. Section 21 provided that the Assembly was to have the functions transferred to or made exercisable by the Act or conferred or imposed on the Assembly by the Act or any other Act. Ministerial functions were to be transferred in accordance with section 22, allowing the Assembly to have exclusive operation, to have power concurrently with the Minister of the Crown or specifying that the Minister could act only with the agreement of or after consultation with the Assembly. The result was that both secondary legislative and executive functions were exercised by the National Assembly for Wales.

Schedule 2 provided that one of the fields in which functions were to be transferred was Town and Country Planning. Other fields where functions were transferred — for example, agriculture and forestry, ancient monuments and historic buildings, the environment and highways — could impact on planning matters.

Practical effect was given to this by the National Assembly for Wales (Transfer of Functions) Order 1999, which came into force on 1 July 1999. The 1999 Order transferred functions under relevant statutes, including TCPA 1990, to the National Assembly for Wales subject to the exceptions and qualifications specified in Schedule 1 to the Order. Similarly, functions under other legislation relevant to planning (e.g. Planning (Listed Buildings and Conservation Areas) Act 1990 and the Town and Country Planning (Costs of Inquiries etc.) Act 1995) were also transferred to the extent specified. A limited number of functions were transferred subject to concurrent exercise with the Secretary ofState as specified in Schedule 2. Functions under related statutory instruments as specified were also transferred. There have been a number of subsequent orders transferring functions but for planning purposes relevant amendments are in the National Assembly for Wales (Transfer of Functions) Order 2000. These continue to determine the extent of devolved functions following the further reforms of the 2006 Act.

The Government of Wales Act 2006 amended the 1998 Act and provided for a separate executive, the Welsh Ministers, responsible for exercising devolved functions. The Order making powers of the Assembly were also transferred to the Welsh Ministers subject to appropriate procedures for Assembly approval. The majority of the provisions of the 2006 Act came into force immediately after the Assembly election held in May 2007.

The 2006 Act also extended the legislative powers of the Assembly. Section 94 provided that laws could be made by an Assembly Measure where provision could be made by an Act of Parliament but subject to the Assembly's legislative competence. Legislative competence was defined by reference to Schedule 5. Initially, therefore, there was power to pass secondary legislation within the devolved fields and also to make primary legislation subject to the limitations on competence and the insertion of a relevant matter into Schedule 5 by a Legislative Competence Order or Act of Parliament. Further provision was made by Planning Act 2008, section 202, which amended Schedule 5, adding legislative competence for plans relating to the development and use of land in Wales.

Section 107 of the 2006 Act provided for laws by Acts of the National Assembly for Wales subject to a referendum on commencement of the power. The referendum of 2011 was in favour and this brought into operation the law-making powers of Part 4 of the Act superseding the previous power to make Measures: the effective date was 5 May 2011. Primary legislation since that date is accordingly by an Act of the National Assembly for Wales. There were no Measures specific to planning passed during the relevant period, 2007 — 2011, although they may be encountered in related fields, such as local government, playing fields, waste and housing. The Welsh Language (Wales) Measure 2011 is of general import and impacts on planning issues and processes generally and is considered in Chapter 3.

An Act must be within the legislative competence of the Assembly, defined as relating to a subject listed in Schedule 7, Part 1 to the 2006 Act and not within one of the exceptions listed in the Schedule. The exceptions listed anywhere in the Schedule apply to all the subjects whether or not contained in the particular subject heading in question.

There are certain general restrictions in section 108 of the Act. A provision must not apply otherwise than to Wales or concern functions exercisable other than in relation to Wales. It is outside legislative competence if it breaches any restriction in Part 2 of Schedule 7 having regard to any exception in Part 3, it extends otherwise than to England and Wales or it is incompatible with Convention rights as defined in the Human Rights Act 1998, s. 1 or Community law.

An Act may also provide for the enforcement of a provision which is within the Schedule or if it is otherwise appropriate for making such a provision effective or is otherwise incidental or consequential on such a provision. Whether any provision relates to a listed subject or an exception is to be determined by reference to the purpose of the provision, having regard, amongst other things, to its effect in all the circumstances.

The proper approach to devolved powers was considered by the Supreme Court in Re Agricultural Sector (Wales) Bill: Attorney General for England and Wales v Counsel General for Wales, where it was said:

the scheme of the conferred powers model adopted for Welsh devolution, as embodied in the [2006 Act], is to limit the legislative powers of the Assembly in relation to subjects listed in Schedule 7 by reference to the express exceptions and limitations contained in the Act, rather than via some dividing up of the subjects in Schedule 7 along lines not prescribed in the legislation. Under section 108(4) and (7), the Assembly has legislative competence if the Bill relates to one of the subjects listed in Part 1 of Schedule 7, provided it is not within one of the exceptions. In most cases, an exception will resolve the issue. Where however there is no exception, as in the present case, the legislative competence is to be determined in the manner set out in section 108. Provided that the Bill fairly and realistically satisfies the test set out in section 108(4) and (7) and is not within an exception, it does not matter whether in principle it might also be capable of being classified as relating to a subject which has not been devolved. The legislation does not require that a provision should only be capable of being characterised as relating to a devolved subject.

Town and Country Planning is a heading in Schedule 7 under which subjects are listed in the following terms: 'Town and country planning, including listed buildings, and conservation areas. Caravan sites. Spatial planning. Mineral workings. Urban development. New towns. Protection of visual amenity.' There is a specific exception to exclude 'Development Consent under the Planning Act 2008'. Subjects under related heading areas (e.g. agriculture and ancient monuments) are also listed in the Schedule. The Planning (Wales) Act 2015, for example, identified the Act as relating to subjects listed under five headings in Schedule 7, namely Town and Country Planning, Local Government, Environment, Public Administration and the Welsh Language.

Notwithstanding that a subject is listed in Schedule 7, the UK Parliament may legislate on any matter relating to Wales. However, by convention, if any law relates to a devolved matter the prior consent of the National Assembly is required: this is given by a Legislative Consent Motion of the Assembly.

In respect of other powers, section 58 provides for the transfer to the Welsh Ministers of any function so far as exercisable by a Minister of the Crown in relation to Wales, with provision for concurrent exercise and agreement or consultation where functions are not transferred. This thus transferred executive and secondary law-making powers previously exercised by the National Assembly for Wales to the Welsh Ministers. Further, the Welsh Ministers may by order make provision which has an effect in relation to Wales that corresponds to the effect an England-only provision of the Planning Act 2008 has in relation to England and conferring power on the Welsh Ministers to do anything in relation to Wales that corresponds to anything the Secretary of State has power to do by virtue of an England-only provision of that Act.

The First Minister and Welsh Ministers are collectively known as the Welsh Ministers. These Ministers and the Counsel General and Deputy Welsh Ministers were named the Welsh Assembly Government in the Act although from May 2011 they were known simply as the Welsh Government and this became the formal title with effect from 17 February 2015. For the purposes of the subject matter of this book the formal power when exercising a function will generally be that of the Welsh Ministers and appeals and legal proceedings should therefore use the title Welsh Ministers.

By section 80 a community obligation of the United Kingdom is also an obligation of the Welsh Ministers in the exercise of their functions and by section 81 there is a general exclusion of acting contrary to the European Convention on Human Rights.

Those functions which had been transferred to the National Assembly for Wales following the 1998 Act were transferred to the Welsh Ministers by section 162 and paragraphs 30 and 32 of Schedule 11 to the 2006 Act. Accordingly, the terms of the Transfer of Functions Orders referred to above and the relevant exclusions apply to the exercise of functions by the Welsh Ministers. In addition there have been specific subsequent transfers either under the 2006 Act or by particular statutes. The Schedule contains transitional provisions for continuance of powers exercised under the 1998 Act.

The Transfer of Functions Orders specify those sections of TCPA 1990 where powers are not devolved. The exclusions essentially relate to certain functions concerning development with government authorisation, development on operational land of statutory undertakers and acquisition of special categories of land with concurrent powers regarding directions relating to national security. Reference should be made the Order for the full terms.

In summary, therefore, the sources of Welsh planning law and practice reflect the developing legal and constitutional position of Wales as a result of over fifteen the developing legal and constitutional position of Wales as a result of over fifteen years of significant change and will continue to be affected by ongoing devolution. As far as concerns town and country planning, the majority of powers and functions are devolved. The relevant sources are listed below together with a description of the situation as presently existing.

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Excerpted from "Welsh Planning Law and Practice"
by .
Copyright © 2017 Graham Walters.
Excerpted by permission of University of Wales Press.
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