Legislation, Justice and Constitution Committee

Prynhawn da. Good afternoon. This is the Planning (Wales) Bill and Planning (Consequential Provisions) (Wales) Bill evidence session with the Law Commission for England and Wales. Can I welcome Professor Alison Young, law commissioner for public law and law in Wales, and Henni Ouahes, head of public law for England and Wales? Apologies if I pronounced your name wrong, which I probably did. I should have practised it first, shouldn't I? As I welcome you here, Professor Young, do you want to explain to the committee how the Law Commission has worked with the Welsh Government on plans for the consolidation of planning law in Wales?

Prynhawn da. Thank you very much for your question. I'd be happy to answer that for you, and thank you also for inviting us to come here today to give you evidence. The way in which this worked was this is part of the process of codification of Welsh law, which was initiated from the Law Commission's 2016 report on the form and accessibility of law applicable in Wales, which led to the process of codification programmes. We were originally asked if we could carry out scoping work on planning law in Wales to see if that would be a subject that would be suited for codification. Following that process, we carried out a further consultation exercise leading to a report, the 'Planning Law in Wales' report, which made various recommendations of how to codify the law in Wales. Following that process, this was legislated on and drafted by the Office of the Legislative Counsel here in Cardiff. So, the Bill is a Welsh Government Bill, drafted by the Office of the Legislative Counsel, on the basis of our 'Planning Law in Wales' report.

Thank you very much. The Counsel General has spoken very positively about this Bill when presenting the Bill to the Senedd. The Counsel General said the Planning (Wales) Bill

'is a Bill that provides the most comprehensive and accessible statement of the legislation governing town and country planning anywhere in the UK. It will mean that legislation is easier to use and understand for everyone who has to engage with it.'

How do you respond to those statements?

Thank you. Obviously we're very pleased that the Welsh Government has picked up our report and we agree with the statements of the Counsel General. I do so personally for two main reasons. First, if you have a look at the way in which the codification process works, this is all about ensuring law can be able to be found in one place, so that if you're wanting to work in planning law, you can go away, look at one code and find all the provisions that you need. This process of codification is a way of ensuring that you have accessible law. Codification can be a really good way of consolidating the law in these areas, because it provides an opportunity to gather all the law in one place.

If you look at the way in which we make law, one of the problems that you often have is what we call fragmentation. You enact a law in a particular area, and later on Governments will then think it's a good idea to modify the policy in this area and will enact another law that might not even have the same name, on a different subject matter, that modifies an earlier law. So, it becomes very difficult to find the law in one particular subject because it's scattered across a different number of Acts. By consolidating and codifying, you make it easier to access because it's in one clear place.

The other element, generally, of thinking through elements of codification and consolidation is it allows you to put together primary legislation, but also a code can include secondary legislation, so you can see the primary provisions and all the regulations. Again, it makes the law much clearer and much more accessible.

You also find this in particular with regard to Wales. You find that in Wales you have laws that will have been made by the Senedd, you'll have laws that were made by the Westminster Parliament, and also now you'll have assimilated laws that were made by EU institutions that are now part of the law in Wales. These will have been enacted from a whole array of different sources, so pulling them together in one place allows you to find them more easily. And also, given that legislation is enacted in Westminster in English and that Welsh was not an official language of the European Union, by bringing them together in one particular code enacted by the Senedd in one Bill in this way, which becomes an Act, it allows you to have this in the Welsh language, which again makes it much more accessible and available for individuals.

As well as those aspects generally, if you look at the planning Bill in particular, you can see in particular that this was a subject that is really ready for codification in this particular way. Now, once this Act has been enacted, if you want to find elements of planning law in Wales, you look at the Historic Environment (Wales) Act 2023 and what will become the Planning (Wales) Act. If you want to do the same in England, you're going to have to look at 18 distinct pieces of legislation, some of which won't necessarily be obvious that they are about planning provisions. So, this makes it much easier and much more accessible, because it was an area that was highly fragmented. Both for those general reasons and those specific reasons, I agree that this Bill will make the law much more easy, much more accessible and will enable you to find the main provisions of planning law you need in one piece of legislation.

Thank you very much. Are there any recommendations of the 'Planning Law in Wales' report that have not been taken forward and that the Law Commission would have liked to have seen reflected in the Bill?

Thank you. Before I answer this question, I'm sure most of you may well be aware that the 'Planning Law in Wales' report took a long time and was reported on before I became a commissioner. So, I can give my views as the current commissioner for public law and the law in Wales, but I wasn't involved in the enactment of the report. I wasn't involved in the 'Planning Law in Wales' report process. However, I have had a chance to look at 'Planning Law in Wales', I've looked at the Bill and I'm very happy that most of our recommendations have been put forward and there isn't anything specific that I feel is missing from this particular Bill.

As you know, because it was enacted by the Welsh Government, it was the choice of the Welsh Government to then decide which of its provisions it was going to pick up and enact. If you look at the drafters' notes, you can see that over 100 of our recommendations have been implemented. Our main key recommendation was that this was an area that was ready for codification. On that basis, we're very happy, and I do not feel able to point to anything that I feel should have been there but isn't there.

Thank you very much. On to Sam Kurtz.

Thank you, Chair. Continuing in that vein, do you have a view on whether the Bills accurately implement the relevant recommendations from the 'Planning Law in Wales' report?

Thank you again for that question. As I've already mentioned, a large number of our recommendations have been implemented. I also had a look at the original response to 'Planning Law in Wales', and again, you can see that a large number of our recommendations from the 'Planning Law in Wales' report were then accepted by the Government and agreed as provisions that could be implemented.

We made 192 recommendations in total in the 'Planning Law in Wales' report. In the detailed response letter from the then Minister for Housing and Local Government, it was noted that 61 per cent of those were accepted completely, 25 per cent were accepted in principle and only 8 per cent were rejected. So, you can see there's a very high response to the recommendations being made that were then moved across into this particular Bill.

Also, if you look particularly at those that were not picked up, that's often because things will come up when the Office of the Legislative Counsel start drafting. They'll pick up things and think, 'We're not sure this would suit a consolidation Bill', or they might have elements of policy choices. So, if you look at the reasons for not picking things up, there's normally been very good justification, either for policy choice reasons or because it wasn't necessarily suited to consolidation.

For example, if you look in terms of aspects of policy choices, one of the recommendations that we put in the 'Planning Law in Wales' report was recommendation 5-7, and this was an answer to the question of whether the Planning (Wales) Bill should include a provision that is the equivalent of section 2 of the Planning (Wales) Act 2015 and the idea of the duty to ensure you carry out sustainable development. This is part of the duty of the Well-being of Future Generations (Wales) Act 2015.

From a law reformer's point of view, you'll say, 'Is there really a need to put in a duty to recognise sustainable development, given you already have that in another piece of legislation?' But I can understand from a policy maker's point of view that you might say, 'I can understand that might be an element of duplication, but it's something from a policy perspective we would like to put in.' So, it's those kinds of elements that you tend to find are the reasons.

Another key area where you tend to find there hasn't been implementation has been with regard to aspects of redundancy. This is when we will point out that we don't think a provision should be in the Bill because we think the provision might be redundant. For example, if you look in our report, there is recommendation 8-29, which is to do with the possible repeal of section 332 of the Town and Country Planning Act 1990, because we had noticed that this particular power had not been used in the 70 years since it had been introduced. Whereas we might recommend and say that this is potentially redundant, obviously, it’s very legitimate for the Welsh Government to say, ‘Well, I can understand why that might be redundant, but there are good policy reasons for keeping it’. So, it’s those kinds of things that you tend to find have not been picked up and replicated. So, on that basis, we're very happy that all of our recommendations were taken very seriously and there are always good reasons for not necessarily carrying them across into the Bill.

Okay. Thank you.

Thank you, Professor. Do you consider the changes made in section 72 of the Bill in relation to the call-in of planning applications by Welsh Ministers and the duty to notify the applicant to be a proper reflection of the Law Commission's recommendation to the Welsh Government about the changes that would be appropriate for inclusion in a consolidation Bill under Standing Order 26C.2(v)?

Okay. Thank you. Before I answer that question, if it's acceptable to the committee, would it be okay for me to explain how SO 26C works more generally and the relationship between our recommendations that come through and how we get notified by drafters and then get questions on specific SO 26C issues?

Whatever you think will make us better informed.

Thank you, that's very kind. I just thought it might be helpful to explain how that process works; it isn't necessarily obvious and can be a little difficult to come to grips with. So, as I pointed out in my introduction, this is a Welsh Government Bill, so as drafters will go along and draft provisions, they will come across issues that they will be asking, ‘Is this something we can put in the Bill and still use the special SO 26C procedure?’ When you look at Standing Order 26C, you have various general categories that are recognised as being capable of falling in Standing Order 26C. If you look at Standing Order 26C.2(v), that's when, if you're not sure it falls into these general categories, there is a process whereby the drafters can ask the Law Commission, ‘Is this something that you think is suitable for inclusion in a consolidation Bill under the Standing Order 26C procedure?’

So, the way in which this works is we'll get letters from the Office of the Legislative Counsel, they'll be sent through to the Law Commission, and we will then look at those particular provisions and evaluate whether we think they're suitable for Standing Order 26C. So, these are not provisions that we ourselves have drafted; these are provisions that have come from the Office of the Legislative Counsel, carrying out due diligence to make sure that they think this falls within Standing Order 26C. We will then carry out our own due diligence to evaluate whether, on behalf of the commission, we think this also falls into Standing Order 26C. So, this is a decision that is taken by all five commissioners—so, the four law commissioners and the chair—who will then determine whether they think something falls into Standing Order 26C generally. So, I'm not necessarily in a position, but I will try my best for your specific questions, to see whether I think the drafting matches the recommendation in SO 26C, and I'm happy to talk those through specifically, but some of those issues are perhaps better posed for the drafters than they are for the Law Commission. But what I can do is explain to you why we felt that was suited to Standing Order 26C and whether we think that it has gone beyond what we felt was suited for Standing Order 26C.

So, before I answer the question with regard to section 72, I’d just like to point out some of the elements that we didn't think were suitable for use for Standing Order 26C. So, there are two main principles. The main element we were concerned about was when it came to criminal law. So, any provisions that we were asked about that related to criminal penalties or that related to aspects of how you try a criminal offence, if we felt that that would make the penalty more severe or could possibly send an indication through the way in which it was tried that it would be looked at more severely, then that was something we wouldn't see suitable to Standing Order 26C. And that's why some of the questions we were asked were not things that we felt were suitable for Standing Order 26C.

[Inaudible.]

Sorry. I think this is the problem of asking professors; we tend to over-prepare.

[Inaudible.]

That was very helpful, thank you very much. In light of it, coming back to recommendation 1, do you consider the Welsh Government to have done that as you wished as a Law Commission?

I do. Yes, thank you. So, this is—. Do you want me to explain a little further? So, we're happy with this particular change. We felt that this was a technical change to smooth over various aspects of planning applications. So, this is a situation where if you have a planning authority and it refers a matter to the Welsh Minister for a decision, or if the Welsh Minister directs that a matter should be referred to them, then previously what would have to happen is the Welsh Minister would have to inform the planning authority; the planning authority would then have to notify the applicant. And this is just a technical change to say that there could be the power in those circumstances to enable the Welsh Minister to notify directly. And if you look at the wording, not only do we think that this is suited to Standing Order 26C as a minor procedural technical change, but also, if you look at the wording of the provision in the Act in section 72, that is precisely what you find in the Act itself. So, we're happy that it reflects our recommendation.

Fab. Moving on to recommendation 2, do you believe that this is a proper reflection with the changes made in Schedule 4, paragraph 5(4)(b) to the Bill?

I do, thank you. So, I'm glad it's not just me that's having to think very carefully about making sure you've got the right sections of the Bill. So, thank you. So, yes, so this is the element of the situation where you have a power to appoint assessors to help you in decision-making processes. This can be done at hearings, and we felt it would also be a minor improvement to procedure if that could also be done in aspects of things prior to hearings, so that, again, it would be an assessor advising you. If you look at the provision of Schedule 4, paragraph 5(4)(b) of the Bill, then this replicates that particular recommendation, allowing you to have assessors with regard to written representations, not just with regard to hearings. It empowers that to be for the Welsh Ministers and inspectors to make that appointment. So, again, it is replicating our recommendation and it's just a minor procedural change.

Thank you. And then coming on to recommendation 3, do you consider this to be a proper reflection of the Law Commission's recommendation—its changes in relation to section 110 of the Bill?

Thank you. So, yes, so this is section 110, which is looking at the elements of when you would have the power to amend purchase notices. So, this is a little bit—. I'll try my best to explain this, because you have to do a little bit of a root around. Recommendation 3 is this element of being able to serve a notice on a joint planning board when the joint planning board is the planning authority. And when you look at section 110, if you've got 110(2), this refers to the ability to serve it on the planning authority in whose area the land is situated. If you then scoot back to the definition section, which is section 7 of the Bill, that defines the planning authority of the area and that can include a joint planning board. So, my best guess is that in order to reflect—because obviously I wasn't drafting it—in order to reflect our recommendation, there's a reference back to the definition section, which would then include a joint planning board, and it doesn't go beyond the specific recommendation we suggested. Obviously, you can check with the drafter to make sure that I've interpreted that correctly.

Thank you. Back to you, Chair.

Thank you. Do you consider the changes made in section 119 of the Bill in relation to enforcement warning notices and the effect on subsequent enforcement action to be a proper reflection of the Law Commission's recommendation, which was recommendation 4?

Thank you. So, this is with regard to aspects of enforcement warning notices, as you mentioned. So, again, we're happy that this just reflects the element of our recommendation in our particular letter.

So, enforcement warning notices—. There was a concern that it would be possible, in the provisions of the Town and Country Planning Act 1990, to be able to extend these indefinitely. So, this was because you could have an element of an ability to issue an enforcement warning notice, and then there was a power to issue further enforcement warning notices within the particular period. So, if you didn't correct that, you could just keep enforcing them indefinitely. So, instead of that, we were asked if it would be beyond SO 26C to change it such that you could have this just once. It has been worded slightly differently from the recommendation in the letter, but, nevertheless, it has exactly the same effect and does not go beyond the Standing Order 26C recommendation.

Thank you. Moving on now, we will make our way up the numbers to recommendation 5. Do you consider the changes made in section 139 of the Bill in relation to enforcement and assurances as to non-liability to prosecution to be a proper reflection of the Law Commission's recommendation?

Thank you. So, again, this was something that went through our scrutiny process with regard to Standing Order 26C. Having looked at it, we are happy that this does not go beyond the recommendation that we were asked to make.

So, this is to do with elements of how enforcement notices work, and I can, if you want me to, talk you through it further. So, planning authorities can give assurance to a person on whom a copy of the enforcement notice has been served that they will not be at risk of prosecution if they don't comply with that particular notice. Problems can arise if the property then changes hands. So, you might serve that notice on A, who owned the property at the time. They then transfer the property to B. So, what this then does is it allows you to issue the same notice on B at a later date.

So, in the way in which the wording of the particular provision is, this allows you, under section 139(3)(a) of the Bill, to serve a copy of an assurance on a person who would have been served a copy of the notice if it had been reissued. So, again, although it's slightly different wording, it is dealing with exactly the same situation because, obviously, if B had owned the property at the time, they would have been given this notice of assurance. So, this provision does what we recommended in what we said was suitable for Standing Order 26C and doesn't go beyond that.

And the same would happen if the ownership was split.

Then it would deal with that as well, because you would think about the idea of who would have been served at that time; it would still cover it. That would be my understanding, yes.

Thank you. Do you consider the changes made in section 152 of the Bill, in relation to a compensation payment for withdrawal of stop notices and a duty of pay, to be a proper reflection of the Law Commission's recommendation, moving on to recommendation 6?

Thank you. So, again, with recommendation 6, we are happy that this does not go beyond the recommendation that we made, that this would be within Standing Order 26C. So, this is to do with a recommendation that we made in our 'Planning Law in Wales' report. This was, basically, looking at the situation where Welsh Ministers can issue a stop notice. In those situations, there could be an aspect where the planning authority might have to pay any compensation that arises because of this, under the particular stop notice, but it would be the Welsh Ministers that have issued it, not the planning authorities. So, it was our recommendation that it was better for it to be determined by—. Whoever was issuing the notice would be the person liable for paying compensation. This recommendation was picked up, and we're happy that this is just an element of tidying up the legislation. If you look at sections 152(5)(a) and 152(5)(b) of the Bill, this picks up the recommendation in pretty much the same wording, and so therefore does not go beyond SO 26C.

And, moving on to recommendations 7 and 8, do you consider the changes made in sections 134 and 164 of the Bill in relation to the offence of supplying false information to obtain a certificate of lawfulness and the application for appeals to be a proper reflection of the Law Commission's recommendations?

Thank you. Again, with regard to these particular recommendations, this was picking up on the fact that, if you looked at planning legislation, there's a large amount of divergence with regard to the offences of supplying false information. So, one of the recommendations was that it would be better to try and harmonise those, so you didn't end up with such divergence, because it's very hard to understand why there was divergence in those particular provisions. So, these elements of our recommendation 7 were to try and ensure that you had this harmonisation, so that, in every single situation, there would be a maximum penalty of an unlimited fine. So, if you look at the provisions of the Planning (Wales) Bill section 134(5), this sets out the offence of supplying false information with regard to issuing a certificate of lawfulness, and section 134(6) sets out that that would be

'liable on summary conviction, or...on indictment, to a fine.'

Obviously by mentioning 'a fine' without setting a limit, that is essentially giving an unlimited fine. Therefore, it is implementing directly what we were asked about, and we are happy that falls under SO 26C and does not go any further.

Thank you very much. Alun Davies.

Thank you, and thank you for your responses, professors, they're very comprehensive.

Thank you.

Rather than going through this by asking you about every recommendation, perhaps we could complete our session through omission. Are there any recommendations that you feel the Welsh Government has not fulfilled from your report? Are there any areas of the Bill that do not conform with the relevant Standing Order?

Thank you. I'm very happy to pick up anything specific, should you wish to do so, but we have gone through this ourselves in the Law Commission and looked at all these recommendations, looked at how they've been replicated in the Bill, and we're very happy that there is nothing that has gone further or that has been omitted.

I think that's very clear.

Thank you. [Laughter.]

We will accept that in terms of a response to a number of different areas.

Thank you.

So, just to move on, the Welsh Government has said in some cases it is unclear why legislation uses the 'deeming approach'. Could you outline your response to that, and potentially the response of the Law Commission as well?

Okay. Thank you. This is an aspect that relates to elements of planning permission. You can find the deeming approach, for example, in section 177 of the Town and Country Planning Act 1990. This is where you have elements of appeals against enforcement notices for breaches of planning control. Often, you'll have an appeal that will include a statement that, even though there has been a breach, planning permission should have been granted or that a condition or limit to the planning permission should have been there. In those particular circumstances, there is the ability to recognise and say, 'Well, the appellant should be deemed to have made that application without those particular errors.' It's a way of trying to correct an aspect.

The reason we made a recommendation is that, in these particular circumstances with regard to the powers of Welsh Ministers, Welsh Ministers have the power to grant planning permission on the determination of an appeal. So, there's no real need to have a deeming provision, because Welsh Ministers could grant planning permission anyway, rather than it being deemed to have been granted. Obviously, it's much clearer and more accessible if you just explain that, actually, we're granting planning permission, rather than deeming it to have been granted in those particular circumstances. That's why we saw this as a welcome simplification and clarification of the law, and that has then been incorporated into this Bill through section 133.

And finally from me then, you've spoken in response to questions on this consolidation Bill, but also a planning code. I'm interested to understand your vision of that planning code, because I presume it would include this legislation that we have in front of us. But also, would there be other legislation that you'd see as a part of that, and, if so, which pieces of legislation would you see in that overarching code?

That's slightly harder for me to comment on, because I wasn't involved in the original report. My team manager, who's very kindly joined me today, was part of the team that worked towards the end of the planning law in Wales. But I'm very happy, from having read that report, picked up on its provisions and then looked at the Bill, that the main aspects that we felt should be in a planning code for Wales have now been included in this particular provision. To the extent that they haven't been, it's normally because there's some kind of element of policy reform that would be needed, and so it would be better suited for that to be changed before it becomes part of the consolidation process. So, I'm happy that the provisions that should be in the planning code are in there.

It may be useful for the committee to write to the Law Commission in the future, when we've considered this legislation, to actually explore these ideas in a bit more detail. But thank you very much.

Diolch yn fawr. Sam.

Thank you very much, Chair. I was going to come on to questions around more of the recommendations, I'm afraid, but, on Alun's point, those have been asked. I think most of these have been ticked off in Alun's previous elements, so what I could do is move on to a point around the drafters' notes. They describe the change in section 395(1) of the Bill as the

'Powers of local authorities and statutory undertakers to contribute to costs incurred in exercising particular functions under the 1990 Act extended to apply to all functions under this Bill.'

The drafters' notes also state:

'The Welsh Government does not consider that there is any reason for the powers to be limited to particular functions under the Bill',

and that making the powers more general gives effect to recommendation 15 in the Law Commission's letter. So, we're sticking with those recommendations, I'm afraid. But could you clarify the Law Commission's recommendation on this matter?

I will, thank you. I'm happy to deal with any specific recommendation, so there's no need to be concerned about that. This is to do with a recommendation to do with the power to contribute. This came from an aspect of looking at the powers in the Town and Country Planning Act, which did allow for the ability to contribute in certain circumstances, but it was limited to certain functions that were set out in the Act.

So, in the 'Planning Law in Wales' report, we had a look at those particular provisions to see if we could understand is there a connecting reason for why some functions have this ability and others don't, and we couldn't necessarily see any particular theme. When you look at the provisions of the Town and Country Planning Act—this is section 306(2)—you can see that a lot of those functions that were then added were added by later pieces of legislation. So, my assumption is there was the power, then you had later pieces of legislation, there would have been a consideration as to whether that should also include the ability to make contributions, and they'd have thought, 'Yes, let's add this as well.' So, I think that's why we couldn't necessarily see a particular theme.

So, given the combination of this being an element of different powers added over time, and the fact that this is an ability to make legislation to have a power not a duty, we felt that there wasn't necessarily any reason to restrict it here, and that would allow you to think about, 'Is this the kind of function where you should be able to make a contribution towards cost incurred by authorities?', and so we were happy, in those particular circumstances, that this was capable of being made a general provision, particularly because it was power and not a duty.

Thank you. Sticking with the drafters' notes, they specifically refer to the Welsh Government agreeing with the Law Commission that the law relating to the countryside, rights of way, the environment, wildlife, felling licences, hedgerow removal and compulsory purchase should not be included within a planning code for Wales. Can you expand on the Law Commission's views on those matters?

Thank you. These are basically the questions that we ask ourselves when we're thinking about codification. You're trying to work out what does and does not fall between a particular body of law regulating a particular subject area, and it's not always easy to determine this completely, because obviously you'll have some areas of law that overlap.

So, if you look at aspects of things like countryside, rights of way, felling and hedgerows, for example, you could see in some senses—and this was raised by some stakeholders when we were carrying out the consultation response—that these could also be part of planning. So, should they be part of planning law as well? But there's also a very good argument to say that they're not necessarily looking at the same kinds of issues as planning law. So, when you're thinking about aspects of the countryside and rights of way, you're thinking of very different purposes of those particular pieces of legislation. You're thinking much more about the protection of the countryside, public access to private land and pedestrian rights of way. And whilst there might be aspects that you would also think about in planning, planning is much broader than that, and can include other kinds of issues as well. So, we felt that, rather than putting these in the planning code, there would be a better justification to think about whether they would be suited to a later, more specific code, looking at those aspects of countryside and the rights of way.

These kinds of questions are the questions we ask ourselves all the time when we're thinking about what's suited to particular types of codes. At the moment we're carrying out a scoping exercise on a potential code for agricultural law in Wales, and we're constantly asking ourselves the question: is this to do with agriculture, or is this to do with something that's connected to agriculture that perhaps might be better suited to potential later codes? So, they’re the kinds of questions we ask all the time when we're thinking about potential codification.

One of the downsides, which I can understand, of not putting them into a planning code is you might think, ‘Well, obviously I'd need to think about these aspects when I was planning as well.’ So, one of the things you can do in those situations is what we call signposting. So, you have a code, but when you put that on the website, you can signpost to, 'If you're thinking about things to do with rights of way, this is where you can find the laws in those areas.' That helps to improve accessibility while also making sure that sufficiently similar subjects are kept separate. That's the kind of thinking process we go through as to why we're trying to think about what would be suited for a planning code or what might be suited to a potential future code.

Thank you for that.

If I may add just one line, just to help. This is dealt with in our consultation paper on planning law in Wales in chapter 3. There's a full list and a table towards the end of chapter 3, if that helps the committee.

Thank you very much.

So, that's the original project that ended with the report in 2018. You'll find a much shorter reference to that in the 2018 report, but in the consultation, it's in chapter 3, and we consulted about that.

Thank you.

Thank you. And the final question from me, Chair. The regulatory regime relating to keeping hazardous substances on land was consolidated in the Planning (Hazardous Substances) Act 1990. We understand that, in response to the Law Commission's consultation paper, the Health and Safety Executive commented that hazardous substances consent being outside the scope of a planning code would not present any problems for them. We also understand that the Law Commission has said the 1990 Act seems to be operating broadly satisfactorily. Can you expand on the Law Commission's views on this matter and the Welsh Government's position that it remains an option to create a further Act within the planning code at a future point dealing with the special controls of hazardous substances?

Thank you. Again, it's very similar to the issues that influenced us with regard to the previous question. When it comes to thinking about whether hazardous substances should be within the planning code, we were thinking carefully about the extent to which we felt that this was raising sufficiently similar issues to planning, or whether we felt that it was actually raising very different issues that would be more suited to a separate code that might be enacted at a later date. And we felt that the aspects of hazardous substances would be much more suited to a future code, because it'd be raising very different issues that you'd see to the issues that would be raised in planning law on a regular basis. Now, again, you would need to understand about hazardous substances, but that might be something that could be best dealt with by saying, 'You'd also need to look at these particular provisions', rather than trying to put them in a planning code.

Obviously, another problem is that, as you've already seen, the Planning (Wales) Bill is already quite large, so if you don't have some kind of element of cutting things off and putting them in possible future codes, you could end up with a code that then almost becomes unworkable because it's too big. So, we're constantly trying to make these choices to see how best to improve accessibility.

With regard to the comment from the Health and Safety Executive, I've had a look at the analysis of responses to our scoping paper, which is available on the Law Commission's website, and you can find the quote from the Health and Safety Executive in that analysis of responses, which we can pass on to you, or give you a link to, so you can go away and check on that particular provision. So, you can see the quote that they provided in the analysis that was then used to support our conclusion at that time that the law was working sufficiently adequately, and there would be no knock-on consequences of not putting that into a planning code.

Thank you very much. Thank you, Chair. That's my questions.

Alun.

I've no further questions.

I've got two. I'll see if I can remember. One—people had planning permission pre the 1946-47 planning Act, didn't they, because they had a right to do something. Coal duff in Swansea vale was something that I dealt with over a period of time. Because they'd had permission to store coal duff there pre 1947-48, whenever the town and country planning Act was, they still had that permission to do it. This will not affect any of those existing powers, will it?

I'm afraid you're now asking me something that is beyond my area of expertise. I'm a constitutional law specialist. So, although I am the law commissioner for public law and the law in Wales, I'm not, I'm afraid, a planning law expert. So, we're very, very fortunate in the Law Commission to be able to employ a specialist lawyer, Dr Charles Mynors, who helped us with our report and who was then seconded to the Welsh Government to help with the drafting. So, I'm afraid that is not something I can answer for you.

I'm not a planning law expert either. But I entirely agree, I think you need to ask the Welsh Government about the draft. But can I just say that, in general, a major plank of work in producing a consolidation Bill like this is thinking about minor and consequential provisions and transitional provisions? I would be very surprised if the effect of this Bill was not prospective, and that a lot of thinking time has been devoted by the drafter about precisely that question, Chair. Sorry, I lack the technical ability to direct you to a particular part of the Bill.

You've directed us to somebody to ask that question to. It can have a quite profound effect, because people keep this planning ability, which was pre the 1947 Act. They had permission before then, and they just keep it turning over. Every time there's a local development plan, for example, or any of those things, they ask for it to continue so that they keep on having that power. You've directed me to speak to somebody else, which is equally as helpful as you answering it. So, thank you very much.

Just on the drafter's notes, you answered a question from Sam Kurtz earlier about the changes that have increased consistently with other appeals provisions in relation to tree replacement notices, and the changes in accordance with recommendation 13 in the Law Commission's letter from May 2024. What exactly are you recommending?

I'll see if I can find it for you. This is with regard to section 216(1)(b).

Yes, it's about trees, which to most elected Members is a matter of great interest. We've got our constituents raising them with us all the time, either for or against.

Thank you. So, when I had a look at this particular recommendation and the provisions, this is again an element of trying to come up with aspects of consistency across a number of different types of measures, so looking at tree replacement notices, also looking at maintenance of land notices. The idea was to try and ensure that they were consistent across these particular provisions. If we look at—. So, this was an element to do with aspects of appeals against these particular provisions, and trying to ensure consistency such that you have appeals against maintenance of land notices, appeals against enforcement notices and appeals against tree replacement notices. This would enable the notice to be able to be varied by Welsh Ministers or, in practice, by an inspector, at any point in the proceedings. So, we were happy that this was a minor improvement to procedure, to ensure that there would be an element of consistency across these different elements of repeals. So, this was one of the areas where we carried out further consultation with stakeholders to check that—that that element of consistency wouldn't go beyond a minor procedural report. We were happy that it wouldn't, and that's why we were happy to make the recommendation that it would fall in SO 26C as a minor procedural improvement.

Okay. Can I thank you for coming along and talking to us and answering our questions? We are very grateful. It's been very helpful to the process we're going through. You'll get sent a transcript of this meeting, for you to check for accuracy. Can I—? As I always tell people who aren't used to appearing in front of these committees, please read through it, because, if, like me, you tend to turn away from the microphone every now and again, sometimes the odd word is missed out because it doesn't get picked up. So, please just check what you've said and that there are no words missing. If you see a dash in there, there's probably a word missing. So, again, thank you very much.

Thank you very much for inviting us. Obviously, if you have any further questions or queries, we'll be very happy to respond to them for you, and we will do our due diligence and make sure we check the transcript. Thank you.

Thank you very much. Can we break for five minutes?

Croeso yn ôl. Welcome back. We move on to item 4, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. Draft report, affirmative resolution instruments: item 4.1, the Corporate Joint Committees (Amendment to the Local Government Act 2003) (Wales) Regulations 2025. These regulations add corporate joint committees to the list of local authorities to which the Welsh Ministers may provide grant funding under the powers set out in the Local Government Act 2003. Senedd lawyers have identified no reporting points. Do Members have anything to say? No.

On to item 5, instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3. The School Teachers’ Pay and Conditions (Wales) Order 2025. This Order makes provision for the remuneration and conditions of employment of schoolteachers in Wales, and comes into force on 7 October 2025, with some provisions being retrospectively applied from 1 September. The Order revokes the School Teachers’ Pay and Conditions (Wales) Order 2024. Senedd lawyers have identified one merits reporting point. A Welsh Government response is not required. Before I call Jen to run through the reporting point, can I just, for the record, say my daughter is a schoolteacher?

Thank you, Chair. Yes, as you say, there's one merits point noted that highlights that various options were considered by the Welsh Government when considering the remuneration of schoolteachers, including that the independent Welsh pay review body recommended a pay award of 4.8 per cent, but the actual award made under the Order is 4 per cent. The regulatory impact assessment sets out further detail on this, so a Welsh Government response is not being requested.

Thank you very much. Affirmative resolution instruments: item 5.2, the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) (Amendment) Regulations 2025. These regulations amend the Town and Country Planning (Fees for Applications, Deemed Applications and Site Visits) (Wales) Regulations 2015, which detail fee categories for planning applications. The explanatory memorandum states that the purpose of the legislation is to allow the Government to address the existing deficit between the cost of determining applications and the income received for providing this service, by making provision for a more fair, effective and efficient system of updating and publicising fees, which will be via a fee document published by the Welsh Ministers. Senedd lawyers have identified five technical and two merits reporting points. A Welsh Government response has not yet been received. That's still true, yes?

That is correct. Thank you, Chair.

Would you like to run us through the reporting points?

Thank you. So, yes, five technical reporting points have been identified, which include three instances of inconsistencies between the Welsh and English text, and two instances of defective drafting, one of which relates to the Welsh text only. There are also two merits points that are noted. The first acknowledges that consultation has been carried out on the proposals to update planning application fees, and the second highlights the policy options considered by the Welsh Government in relation to these regulations. As you said, Chair, we're awaiting a Welsh Government response in relation to the technical reporting points only.

Thank you very much. Will we expect them to explain why the Welsh and English don't quite say the same?

Ordinarily, they will respond to each technical reporting point in turn, so there should be something specific on those points.

Thank you very much. Anybody else? The Health Impact Assessment (Wales) Regulations 2025, paper 6, draft report. These regulations make provision specified under Part 6 of the Public Health (Wales) Act 2017, which requires a public body to carry out a health impact assessment when it proposes to make a decision of a strategic nature about how to exercise its functions. The regulations also make provision in relation to the publication of guidance as well as publication of the assessments as soon as is practicable, and amends the list of public bodies required to carry out an assessment. Senedd lawyers have identified one technical and one merits reporting points. Again, a Welsh Government response had not been received by this morning. Has it been received?

No, Chair.

No. Would you like to run us through the reporting point?

Of course. So, the technical reporting point notes that the regulations make unusual or unexpected use of the powers confirmed by the enactment under which it's made. This is because the explanatory memorandum to the regulations states that Public Health Wales will be required to provide a programme of support to public bodies in relation to the health impact assessments, but the regulations don't actually impose this requirement. So, further information is requested in that regard. A merits point also seeks an explanation as to why it's taken just over eight years to commence the provisions of the Public Health (Wales) Act 2017 in relation to health impact assessments. And as you said, a Welsh Government response has not yet been received.

Any Members got any comments? No. Thanks, Jen.

Instruments that raise issues to be reported to the Senedd under Standing Order 21.2 or 21.3—previously considered. Members are invited to formally note the letter to the committee sent to the Counsel General in response to our July letter, which we considered at our meeting on 15 September. If Members have no comments, we can move on to the next item.

Item 7, notifications and correspondence under the inter-institutional relations agreement. This is a standing item in our agenda, but we have nothing to discuss this week, so we move on to the next item.

Item 8, papers to note. Correspondence from the Welsh Government: the Welsh Government's response to the committee's report on the Welsh Government's supplementary legislative consent memorandum, memorandum No. 2, on the Animal Welfare (Import of Dogs, Cats and Ferrets) Bill. The Welsh Government has responded to the recommendation we made in our report, which asked what representations were made to the UK Government for the inclusion of commencement powers for the Welsh Ministers in the Bill. The response reiterates the statement made in memorandum No. 2, which stated that the Welsh Government committed not to seek any amendments to the Bill to support its passage through Parliament. The response, however, also states that the Welsh Government has received assurances that it will be consulted on commencement matters. Do Members have any comments? No.

That takes us on to item 9. In accordance with Standing Orders 17.42(vi) and (ix), I invite the committee to resolve to exclude the public from the remainder of the meeting. Do Members agree? Yes. It's agreed.