Welsh Government is full of surprises. Yet another unheralded move took immediate effect from 15 January 2020 with publication of the Town and Country Planning (Major Residential Development) (Notification) (Wales) Direction 2020.
The Direction imposes a duty on Planning Authorities to refer applications to the Welsh Ministers where they are minded to grant planning permission for residential development of more than 10 residential units or residential development on more than 0.5 hectares of land which is not in accordance with one or more provisions of the development plan in force. It applies to all applications for such development lodged on or after 15 January 2020.
Previously the duty has applied to “significant” residential developments of 150units + or sites of 6ha or more.
The Directions prevents the Council granting planning permission, were it minded to do so, for 21 days to allow Welsh Government to consider whether to “call-in” the application, various provisions for earlier release, holding directions etc.
Its a move designed to effect uptodate Local Development Plan coverage according to the Minister. More worryingly, it fires another shot across the bows of the development sector referencing yet again the term speculative development in Government statements. The negative connotations this term promotes fails to acknowledge how the failure throughout Wales to produce deliverable LDP’s and the continuing absence of sites that are deliverable, viable in sustainable places where the market wants to build and people need and want to live.
The associated Circular offers no guidance as to how far Welsh Government intend to go in intervening - could it be a light touch oversight or will it call-in a larger number of applications? Time will tell. Neither Government nor Planning Inspectorate has the resource to manage large caseloads if its the latter and will serve only to further delay the delivery of planning permissions.
A fundamental point for Local Authorities to resolve quickly is whether a scheme which, in the ordinary course of events, conflicts with a small part of development plan, but where the planning balance when assessing material considerations weighs in favour of granting permission, needs to be notified to the Minister. As per the 2012 Direction, it requires local authorities must, when notifying the Minister, provide “ a statement of the material considerations which the authority consider indicate (if such be the case) that an application for major residential development should be determined otherwise than in accordance with the local development plan”. That suggests to me that any conflict with the development plan in force may well trigger the duty to notify. Certainly it opens the door to increased risk of challenge on procedural grounds where LPA’s do not do it.