Historic Environment (Wales) Act 2023

Early November will see commencement of this Act, which consolidates and brings into force new legislation in Wales broadly affecting Scheduled Monument, Listed Building and Conservation Area protection. Updated Regulations and some important changes to requirements for applications for Consents and associated Appeal processes and revocation of raft of previous Regulations and Directions will also come into force.

Ensuring the right skills and expertise to deliver your proposals through is a key and core practice strength. Don’t hesitate to contact me for

Wrexham LDP

The decisions earlier this year by Wrexham CBC not to adopt its LDP have been quashed today. The Council have been told “a meeting and resolution adopting the LDP any later than mid-January 2024 at the latest would not be a proper response to this order” and been given until 4pm on 14/12/23 to summons a meeting to consider adoption. Costs of £100k have also been awarded to the claimants (a developer consortium.).

Llandudno Town centre successes

We're thrilled to have received two planning permissions in Llandudno in the last few days, both aligned with "Town Centre First" principles. These permissions mark significant milestones for our clients and showcase our expertise in town centre planning.

"Botanical Babe" on Mostyn Street, Llandudno, introduces a unique mixed A1/A3 specialist plant shop and coffee space that attracts customers from far and wide to its stylish and inviting location. Situated in a primary shopping zone, the proposals presented a challenge for planners in protecting the resort's retail core. However, we successfully set out a case that the scheme enhances the street's character, injects a fresh and modern atmosphere as well as using a locally roasted coffee. The establishment should become a vibrant retail and social hub promoting footfall. . Notably, the building (grade 2 listed) holds historical significance as a former temperance house and the home of the first suffragette society in Wales. We extend best wishes to Tesni and her team.

Building upon our previous permissions secured for Mostyn Estates, we have also obtained a new flexible permission for LVL5, a gym company, to open on the first and second floors at the Tudno Castle site, using unoccupied A1 and A3 space. This cutting-edge facility will offer state-of-the-art equipment, expert trainers, and a range of fitness, health, and well-being services, as well as a juice bar. We are excited to have secured this opportunity for Sion and Rich, especially after delivering a permission for them elsewhere in the town on a site they couldn’t ultimately attain.

Once again, we extend our thanks to Sion and Rich for their continued confidence in and support for our practice.

Both schemes exemplify our ongoing commitment to sustainable placemaking, integrating mixed-uses within town centres, and delivering community benefits, including:

- Economic Growth: Both projects create employment opportunities, contributing to the local economy, footfall and support livelihoods within our community.

- Social and Healthy Spaces: The coffee shop will be a welcoming shop and meeting place, fostering shared interested in plants in a relaxed environment. The gymnasium brings fitness enthusiasts together, promoting active and healthy lifestyles.

Stay tuned for future updates as we assist and guide our clients through the planning process, shaping stronger, better, and more vibrant towns.

Pete.

Condition success

Finding a route to successful (and commercially viable) delivery of development often involves steering a course around planning conditions. In a recent case we had to find a way to enable a client to deliver two adjacent ‘modest’ 9 dwelling planning permissions each with a phasing condition but where the scheme funders needed plot delivery in a particular way. Neither scheme required the other to be built under the planning permission but the council wanted the affordable housing delivered in a timely way. We’ve successfully managed to vary the phasing conditions for our client to satisfy the council, the developer and the funding streams. Great news

The Wrexham Planning Olympics

February 2012. Captain Francesco Schettino was still very much in the news, London hadn’t yet hosted the XXX Olympiad (remember all that pre-games pessimism turning into Super Saturday?.) Gotye ft Kimbra and DJ Fresh ft Rita Ora were swapping number 1 hits, Manchester City woke up. Nick Thingy was Deputy PM in a coalition government. Brexit? Not even termed. Not to mention Planning Policy Wales Edition 4. -a classic. The first digital only version I recall.

Planning Geeks will also recall Wrexham CBC withdrew its First Local Development Plan on the advice of the then Examining Planning Inspectors that same month.

LDP2 followed. Preferred Strategy 2016, Deposit Plan 2018, Examination Mid 2019 onwards. The phosphates issue from Jan 2021 cause nearly 2 years further delay. The Inspectors Binding Report in last month found the plan Sound. Adoption therefore should be a mere formality. After all, the Regulations say the Council must adopt the LDP within eight weeks of receipt of the recommendations and reasons given by the person appointed to carry out the examination unless otherwise agreed in writing by the National Assembly.

Yet last night, the Council didn’t do the “must” bit and resolved not to adopt the LDP. The stuff of planning nightmares, jungle drums, corridor whispers and social media shouts was realised.

The debate was passionate on all sides . Some interesting things stood out to me :

• Views that much has changed in Wrexham since LDP2 and its evidence base was conceived and since the Council proceeded to deposit and Examine the LDP.

• Civic ownership of the LDP was lacking. (Note its preparation stretched over 3 Council administrations)

• No Plan is better than a bad plan.

• Conversely, the Plan was better than no Plan. The Chairman of Planning Committee put it succinctly “No plan will ever please everyone”.

In the short term, the worst fears of most were probably realised. Nobody wins in the absence of an (uptodate) Development Plan. Decisions still have to made, about investment, infrastructure, housing, employment, local heatlh services and planning etc. Delayed or lost. Local control over decisions about what, where and how much development take place may now be lost, whether at appeal or other intervention. Public confidence in our imperfect planning system in Wales will be yet again tested.

I particularly feel for Officers who have worked diligently and professionally to prepare and steer the Plan through its myriad processes and hurdles. Morale must be at rock bottom today. Its not as if Wrexham has found it easy to resource its planning service either. Like a challenge? - I’m not sure the Planning Policy Manager position is filled. Could be fun.

What happens next? The LDP Regulations help no further as they don’t envisage non-adoption.

The Council could take a short pause then reconsider its decision if politics permit. There may (almost certainly will) be a challenge (or a threat of one), forcing it to make its decision again.

Could Welsh Government intervene? S.71 of the Planning and Compulsory Purchase Act 2004 sets out the Assembly’s default power where it thinks that a local planning authority are failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a local development plan. If exercised it requires Welsh Government to hold a further examination, publish a new report and empowers the Welsh Government to approve the LDP as a local development plan. But that is uncharted territory. The Ministers desire for every Council to have an up to date LDP may hold sway.

Todays News - (BBC Wales/North East Wales), the Daily Post etc) makes no mention of the decision. The expected promotion of Wrexham AFC back into the Football League after 15 years (about the same length of time since LDP1 was gestating) and £25m investment to develop the Kop and regenerate land around Racecourse ground and station captures the headlines.

Yet planning is integral to the success of the Racecourse, the club, the City and County and to delivering all it needs to protect and sustain it . A little of Hollywood’s current shine seemed to dim yesterday.

Non-Validation Appeals, Dwellinghouses and Dwellinghouses.

Not one of from this practice, but an interesting case around the validation of planning applications and definitions of dwellinghouses for various planning purposes and the care needed around terminology.

An application was made for development described as “Change of use of land for the siting of 15 timber lodges and associated works (part retrospective)”. The Council using its powers under S62ZA(2) or (4) of the Act served a notice requiring in simple terms a higher planning fee [based on the proposed lodges being dwellinghouses] and that 15 dwellinghouses (for the purposes of the Development Management Procedure Order in Wales) amounted to major development. The latter triggered both reporting under the Councils adopted Local Validation List and carrying of out Statutory Pre-application Community Consultation. The applicants appealed against the notice of invalidity.

The initial PEDW determination on the invalidity point was subject to Judicial Review and quashed by the Courts on 24 February 2023 as PEDW had originally found that the proposed lodges, although falling within Use Class C6 (Short term Lets) were not dwellinghouses. At JR the parties agreed that was an error as a matter of law and the appeal remitted for redetermination.

PEDW has now issued its redetermined decision which corrects the error. It allows the non-validation appeal in respect of the point that the lodges are not dwellinghouses for the purposes of Fee Regulations (in Wales) as those Regulations define a dwellinghouse as a building which is used as a single private dwellinghouse and for no other purpose. The Planning Fee should be calculated on the basis of them being buildings other than dwellinghouses.

However, the PEDW officer in dealing with whether the non dwellinghouses were in fact dwellinhouses for Use Classes Order also found:

… that holiday lodges would fall within Class C6 of the Use Classes Order, Short-term lets, i.e. “Use of a dwellinghouse for commercial short-term letting not longer than 31 days for each period of occupation”. As the proposed 15 units would constitute dwellinghouses for these purposes, the proposal does meet the definition of Major Development set out in Article 2 of the DMPO. The application is therefore one to which the requirement for Pre-Application Consultation under Section 61Z(1) of the 1990 Act relates, as per Article 2B of the DMPO.

The invalidity appeal did not succeed on that ground. Therefore to secure a valid application it will be necessary to carry out pre-application consultation as required for major development in Wales.

An example we think here of the Fee Regulations not catching with Use Classes Order amendments. So we wouldn’t be surprised if a non-too distant update of the Fee Regulations will do some catching up.

Marmite.

It’s been a while since attending committee in person, and even today we chose to use zoom rather than travel. Long may hybrid meetings last. It was interesting to see the dynamic in a newly formed committee. It will be key to watch how the officer-councillor relationship develops. Fireworks maybe.

More importantly, Pete supported an application where a previous application had been refused. Without going into the merits of the previous refusal (ok then we will, its a bit harsh but we could see why officers might have got themselves there) a client recommended me to take a critical view over the refused scheme and tell it ‘as it is’. Apparently because I do that, I can be a little bit like marmite.

Seems some prospective clients don’t necessarily like being told what they don’t want to hear.

Really?

Pete can live with that. We’ve made lots of clients very happy with that approach over the last 15 years and the few who don’t like being given robust professional advice can freely access the myriad of other options out there.

I digress. Pete reviewed, advised (marmite style, love it or loathe it). Seems the client is a twiglet lover and so we were instructed. We engaged planners, ring fencing the areas we both agreed on and focussed on the points where we disagreement could be turned around. A couple of steps and Pete had confidence to advise the revised scheme be redrawn and readied for planning.

Today planning committee endorsed the officers recommendation to approve. The only disappointment is that one member voted against.

It’s good to leave room for improvement. Thanks to BRArchitecture for his skills and imagination

TAN 15

We began to hear rumours a couple of weeks ago that the were stirrings about the impacts of the new TAN 15 and Wales Flood Maps due to come into force on 01 December. Talk of threats of JR, letters from WLGA, impacts on regenerations sites, town and city centres etc.

Welsh government has announced that the new TAN 5 has been suspended until 01 June 2023 to allow “local planning authorities to fully consider the impact of the climate change projections on their respective areas”. See here for the full announcement. There is also a consequential change to he Development Management Procedure Order in respect of the consultation requirements.

Homeworking and Material Change of Use

The Pandemic has been a bit of a game changer in planning matters in many ways. it has accelerated home-working, Welsh Government itself has set a target of 30% of people “remote” working at or near to home. Home working is a familiar concept here.

As ever, the law is changing.. A judgement handed down today (in respect of a Personal Trainer operating from a garden building at home) may prove to be a little problematic.

Without going into the specifics of the case, it centres around a lawful development certificate and (English) Planning Practice Guidance on working from home. Welsh Government also issues similar, but not identical guidance. Both sets broadly focus on the localised “environmental” impacts. Guidance is not a statement of the law of course. The case however points to the limitations of using environmental impact as the measure not of impact but of materiality of the change of use. It tells us:

…, a material change of use can be made without any adverse environmental impact at all. Treating environmental impact as the seemingly crucial issue for the judgment as to whether a material change of use has occurred, or a purpose is reasonably incidental is not consistent with clearly established law. The crucial test is whether there has been change in the character of the use. Environmental impact can be relevant as evidence that a material change has occurred, because a use of the new character may be capable of yielding environmental impacts or have done so already. The Guidance as written is apt to mislead as to what the real question is, and as to the true but limited relevance of environmental impact.

The consequence of the case is that there may well be tightening up of how (your still home working Planning Officer) will approach your request to work from home without permission and applications being requested where once they weren’t. It’s therefore crucial to understand what you are doing if working from home and how it relates to the correct tests of materiality where change of use (or a secondary/mixed use) my be involved.

As ever we are happy to advise.

Garden Caravan - LDC Secured

A trend in these in times is enquiries to provide ancillary accommodation for loved ones or as home offices.

In a recent case, a client had previously had a lengthy battle (a term i use rarely) to secure a replacement house including Judicial Review and 2 previously failed appeals. He needed more space for a family member to join the household.

We are therefore delighted having advised on and submitted a lawful development certificate for proposed use of development (CLOPUD) for a large mobile home as annexe ancillary accommodation, a Certificate has been granted this week. Thereby enabling a family, who have been apart way too long over covid times to reunite as a single unit and improve the wellbeing of all involved.

A little Friday joy. If you have need for a garden room or additional accommodation talk to us about how we can guide you through the planning system smoothly.