Infrastructure (Wales) Bill: scrutiny highlights issues

Published 01/12/2023   |   Reading Time minutes

The Infrastructure (Wales) Bill reforms how infrastructure is consented in Wales. It establishes a new process, known as an ‘Infrastructure Consent’, for specific types of major infrastructure called ‘Significant Infrastructure Projects’ (SIPs).

These include energy, transport, waste, water and gas projects above certain size or capacity thresholds on land and in the sea.

Infrastructure Consent replaces existing statutory regimes, including the current Developments of National Significance (DNS) process. It reduces the number of authorisations needed to construct and operate a SIP by incorporating them in a single consent.

The Senedd’s Climate Change, Environment and Infrastructure Committee has completed Stage 1 scrutiny of the Bill and published its report. The Bill is long and technical; this article highlights only a few of the issues discussed.

Support for the general principles

There’s widespread support for the general principles of the Bill and the Committee recommends the Senedd support it. But, as ever, the devil is in the detail.

Scrutiny “severely impacted”

This is a ‘framework Bill’ describing a high level process. The detail of how the process will operate will be set out in subordinate legislation. This approach isn’t uncommon in planning law, but it has made scrutiny challenging.

Some stakeholders questioned whether the right balance had been struck between including detail on the face of the Bill and in subordinate legislation.

Others recognised the benefits of flexibility, given the rapidly changing nature of technology and planning policy.

The Climate Change Minister, Julie James, acknowledged the “difficult balance”. She argued “we need the certainty in the headline Bill of the process itself, and then we need any detail that we think is going to be subject to continuous change to be in the regulations”.

The Committee disagreed. It believed transparency and clarity were more important than flexibility. It said its ability to scrutinise how effective the Bill will be was “severely impacted” because critical details are left for future regulations.

The Committee recommended the Welsh Government publish a timetable for consulting on the subordinate legislation, and allow time for Senedd committees to scrutinise it.

Unclear transitional arrangements

The need for clarity on transition to the new regime was a recurring theme.

Local Planning Authorities (LPAs) were concerned about a lack of detail and felt pre-application work done before the new regime starts should remain valid.

Developers agreed, stressing the need for a clear cut-off point and criteria for determining how projects would transition between regimes.

The Minister agreed with much of this saying transitional arrangements would be included in regulations.

The Committee noted the new regime is expected to be operational by mid-2025 and recommended the Minister publish a timetable showing when the transitional arrangements will be decided.

Will community consultation be better?

The Minister said the Bill will make it easier for the public to engage with the consenting process, because there’ll be a single consultation on a single consent.

But some stakeholders said it’s difficult to comment on this aspect because, again, the detail is left to subordinate legislation. They said there’s nothing to indicate how public consultation would be different, and better, from that under the current DNS process.

The Committee agreed, and recommended the Minister amend the Bill to be clearer on consultation and publicity processes.

Mixed views on policy framework

The Bill says applications must be decided in accordance with a relevant ‘Infrastructure Policy Statement’, the National Development Framework (currently Future Wales) or the Marine Plan.

Where a policy statement is incompatible with Future Wales or the Marine Plan, the policy statement takes precedence.

Stakeholders were split on Infrastructure Policy Statements. Some saw them as supplementary to Future Wales and the Marine Plan, filling in gaps as needed.

Others saw them as a separate suite of policy statements, setting out the Welsh Government's planning policies for infrastructure, mirroring the equivalent process in England.

There was concern that though the policy statements would take precedence over national plans, the Bill doesn’t set out a process for them to be adopted or require scrutiny by the Senedd.

Some stakeholders said policy should clearly express the need for infrastructure (again, as in England), and Future Wales and the Marine Plan are inadequate in their current form.

The Minister didn’t think a comprehensive suite of policy statements was needed and said there’s no ambiguity in Future Wales or the Marine Plan. She said policy statements would be subject to the same consultation engagement and Well-being of Future Generations Act requirements as all Welsh Government policy documents.

A Welsh Government official confirmed they were “re-examining” the hierarchy of policy documents set out in the Bill.

The Committee recommended the Minister explain why the primacy of policy statements over national plans was still being considered after the Bill’s introduction.

The Committee also recommended the Minister amend the Bill so Infrastructure Policy Statements are subject to consideration and agreement by the Senedd.

Clarity on timeframes

The Bill requires an application to be decided within 52 weeks, but allows considerable flexibility for this timeframe to be amended.

While there was general support for this timeframe, stakeholders said there’s too much flexibility for the Welsh Government to extend it. There was also a strong feeling timeframes for the various stages should be put on the face of the Bill.

The Minister said the overarching 52 week timeframe should be on the face of the Bill but the “sub-time frames, like the period of time to validate an application or the examination period […], will be in the regulations, so that we can keep them under review”.

Some felt the Minister should make a statement to the Senedd if the Welsh Government wished to extend the deadline for determining an application. The Minister questioned the purpose of this and said it could lead to delays.

The Committee recommended the Minister amend the Bill to include a detailed timetable for the 52-week period, and any extensions should be notified to the Senedd via a written statement.

Resourcing is critical

Resourcing is a perennial issue in the planning system. Stakeholders said the new system will only function effectively if all parties are resourced properly, both in terms of funding and having the right expertise in place (this includes LPAs, statutory consultees, and Planning and Environment Decisions Wales).

The Minister suggested the system will need “a little bit more resourcing” to begin with, but “once it's up and running, it won't take up any more resource than is now taken up, and if it works effectively, it might even take slightly less resource.” She said the Welsh Government will provide training and guidance.

The Minister also said she was “very committed” to full cost recovery: “I don't see any reason why the public purse should be subsidising developers of this scale”.

The Committee welcomed the Minister’s commitment to full cost recovery and recommended the Welsh Government work with other public bodies to find the most effective way to deliver the specialist advice necessary.

Further information

Senedd Research has published a Bill summary and a summary of evidence. There’s more information our Bill resource page.

The Committee’s recommendations can be found in its Stage 1 report.

Two other Senedd Committees have made recommendations on the Bill: Legislation Justice and Constitution Committee; and Finance Committee.

The Senedd will debate the Bill and vote on whether it should proceed on Tuesday 5 December. You can watch live on Senedd TV.

Article by Elfyn Henderson, Senedd Research, Welsh Parliament