Pwyllgor Newid Hinsawdd, yr Amgylchedd a Seilwaith

Climate Change, Environment, and Infrastructure Committee

28/09/2023

Aelodau'r Pwyllgor a oedd yn bresennol

Committee Members in Attendance

Delyth Jewell
Heledd Fychan Yn dirprwyo ar ran Llyr Gruffydd
Substitute for Llyr Gruffydd
Huw Irranca-Davies
Janet Finch-Saunders
Jenny Rathbone
Joyce Watson

Y rhai eraill a oedd yn bresennol

Others in Attendance

Annie Smith RSPB Cymru
RSPB Cymru
Eleri Davies Cymdeithas Cynllunio Seilwaith Cenedlaethol
National Infrastructure Planning Association
Geoff Ogden Trafnidiaeth Cymru
Transport for Wales
James Good Cymdeithas Cynllunio Seilwaith Cenedlaethol
National Infrastructure Planning Association
Liz Dunn RenewableUK Cymru
RenewableUK Cymru
Matthew Hindle Wales & West Utilities
Wales & West Utilities
Ross Evans Ymgyrch Diogelu Cymru Wledig
Campaign for the Protection of Rural Wales
Sonny Robinson Network Rail
Network Rail
Tom Hill Ynni Morol Cymru
Marine Energy Wales

Swyddogion y Senedd a oedd yn bresennol

Senedd Officials in Attendance

Andrew Minnis Ymchwilydd
Researcher
Elizabeth Wilkinson Ail Glerc
Second Clerk
Katie Wyatt Cynghorydd Cyfreithiol
Legal Adviser
Lukas Evans Santos Dirprwy Glerc
Deputy Clerk
Marc Wyn Jones Clerc
Clerk

Cofnodir y trafodion yn yr iaith y llefarwyd hwy ynddi yn y pwyllgor. Yn ogystal, cynhwysir trawsgrifiad o’r cyfieithu ar y pryd. Lle mae cyfranwyr wedi darparu cywiriadau i’w tystiolaeth, nodir y rheini yn y trawsgrifiad.

The proceedings are reported in the language in which they were spoken in the committee. In addition, a transcription of the simultaneous interpretation is included. Where contributors have supplied corrections to their evidence, these are noted in the transcript.

Cyfarfu’r pwyllgor yn y Senedd a thrwy gynhadledd fideo.

Dechreuodd y cyfarfod am 09:30. 

The committee met in the Senedd and by video-conference.

The meeting began at 09:30. 

Cynnig i ethol Cadeirydd dros dro
Motion to elect a temporary Chair

Good morning, everyone, and welcome to today's meeting of the Climate Change, Environment and Infrastructure Committee. The Chair is unable to attend the meeting. Therefore, in accordance with Standing Order 17.22, I call for nominations for a temporary Chair.  

Thank you, Huw. Thank you, all. Are there any other nominations?

No, I see there aren't. I therefore declare that Delyth Jewell has been appointed temporary Chair for the duration of today's meeting.

Penodwyd Delyth Jewell yn Gadeirydd dros dro. 

Delyth Jewell was appointed temporary Chair. 

1. Cyflwyniad, ymddiheuriadau, dirprwyon a datgan buddiannau
1. Introductions, apologies, substitutions, and declarations of interest

Diolch yn fawr iawn am hwnna. Diolch i bawb.

Thank you very much for that and thank you, all. 

That's always a tense moment, if there are any other nominations, like that moment in a wedding. 

Bore da a chroeso, bawb, i'r cyfarfod hwn o'r Pwyllgor Newid Hinsawdd, yr Amgylchedd a Seilwaith. Dŷn ni wedi derbyn ymddiheuriadau gan Llyr Gruffydd ac mae Heledd Fychan gyda ni yn dirprwyo. Fel bydd unrhyw un ar Senedd.tv yn gweld, dŷn ni yn cynnal y sesiwn hon mewn fformat hybrid ac mae ein tystion y bore yma yn ymuno â ni drwy Zoom hefyd. Cyn i ni fynd ymlaen at ein cwestiynau, gwnaf ofyn a oes gan unrhyw Aelodau fuddiannau i'w datgan. Dwi ddim yn gweld bod. 

Good morning and welcome, everyone, to this meeting of the Climate Change, Environment and Infrastructure Committee. We have received apologies from Llyr Gruffydd and Heledd Fychan is joining us as a substitute. As anyone watching on Senedd.tv will see, we're holding this meeting in a hybrid format and our witnesses, this morning, are joining us via Zoom also. Before we move on to our questions, I'll just ask whether any Members have any declarations of interest to make. I don't see that there are.

2. Bil Seilwaith (Cymru) - Sesiwn dystiolaeth gyda'r Gymdeithas Cynllunio Seilwaith Cenedlaethol
2. Infrastructure (Wales) Bill - Evidence session with the National Infrastructure Planning Association

Gwnawn ni symud yn syth ymlaen at y sesiwn dystiolaeth gyda'r Gymdeithas Cynllunio Seilwaith Cenedlaethol. Gwnaf ofyn i'r tystion ar y sgrîn i gyflwyno eu hunain ar gyfer y record. Gwnaf fynd at Eleri yn gyntaf.

We'll move straight on to the first evidence session with the National Infrastructure Planning Association. I will ask the witnesses on the screen to introduce themselves for the record, and I'll go, first of all, to Eleri.

Bore da. Eleri Davies ydw i. Gwnaf i wneud e'n Saesneg gan ei fod yn eithaf technegol.  

Good morning. I'm Eleri Davies. I'll continue in English, because it's quite technical in nature. 

I'm a member of the National Infrastructure Planning Association. I'm also head of onshore development for Wales and England for RWE Renewables UK. I'm a member of the Town Planning Institute and my previous roles include being a local authority planner and roles with the Planning Inspectorate. So, I have a good understanding of the public and private sectors in terms of the planning system. I've worked on major infrastructure projects onshore under multiple consenting regimes in England, Wales and Scotland. And, just as a headline, we welcome the legislation in principle. Obviously, a lot of it will come down to the detail—the ultimate success of the legislation—as well as adequate resourcing of public bodies. Diolch.

Diolch. Thank you, Eleri. And, James, I'll ask you to introduce yourself for the record, please. 

Bore da. James Good. I'm a partner at Bryan Cave Leighton Paisner, a law firm in London. I'm a board member of NIPA. I specialise in advising on major infrastructure projects. I've advised on projects in Wales, and we are, indeed, advising on projects in Wales at the moment, and have done in the past. I've also advised on major infrastructure projects in England, notably the Thames Tideway tunnel and Heathrow Airport, where I was one of the joint leads for the external legal team. It's a pleasure being here today. Although I will sound very English, I will say it's a personal pleasure as my mother's family come from mid Wales, so I'm delighted to be involved. Thank you very much.

Great. Thank you, both, very much indeed. So, if it's all right with you, we'll go straight into questions. And, firstly, we've had evidence from a number of different bodies suggesting that there is a need for clarity about how the transition is going to work from the arrangements that are already in place to the new processes. Could you talk us through, please, what your views are on that and how you think that clarity could be achieved? Whoever wants to go first, if you want to indicate. Eleri.

I'll go first on that one. I guess, I'll probably pass over to James for the actual legal arrangements that could follow. But, in terms of work on infrastructure projects, we obviously start that work a long time before projects go into the planning application process. So, to be able to plan ahead for our future projects, we do need clarity on the transitional provisions as soon as possible. It's especially important in this case, because we're moving from the current developments of national significance process, where—I'm talking specifically about energy—but the thresholds are changing. So, we will need clarity, because we're moving from 10 MW to 50 MW, so what we need to do, I guess, to prepare ourselves for the new legislation. And also, alongside that, if we are moving into a different consenting regime with a project that's already progressing through the pre-application process, we need to know whether anything that we've done already will count, such as scoping and pre-app consultation and whether that can be seamlessly transferred to another regime. But I'll pass over to James for the more detailed side of the legislation on that.

Thanks, Eleri. I agree with what Eleri said. It is very important that there is legal certainty about how this is going to work, and the sooner that comes, from a promoter's—. Really, anybody involved in the system needs to understand that as quickly as possible, so that they can plan accordingly, they can programme accordingly, plan resourcing, et cetera.

One of the thoughts that occurred to me is that there probably ought to be some clarification about whether the opt-in provisions, which are in the Bill, would or could apply to an application that is already in, say, for example, the developments of national significance system—whether that could be opted in. And if that were to happen, to what extent could activities that had already been undertaken in relation to the DNS application, for example, consultation or scoping for an environmental impact assessment, or indeed scoping for habitats purposes, be carried forward into the new significant infrastructure project regime?

I think our overall view is that something that is in the DNS regime when the new regime becomes live probably ought to stay in the DNS regime, unless there are very good reasons to move it. That seems to be—. If you move it unnecessarily, for example, that might add complications. That said, there probably needs to be a specified point in time whereby you are deemed to be in the DNS regime and therefore you stay in that regime. Traditionally, that has been around EIA scoping, on the adoption of scoping opinions, but that's not to say that it has to be that, but that would be a sensible point in time. Because at that point there is a good idea or a good definition of the scheme and people understand what is being proposed, and at that point, you have a degree of certainty where you can carry on that way. That said, there has to be a cut-off. You can't simply have a scoping opinion adopted in, say, 2023, there then becomes technological change or a resourcing issue for a project and it gets suspended for a period of time, maybe a couple or possibly three years, and then you're still relying on a scoping opinion that is three years out of date, because at that point, your baseline data would need to be updated. So, there does need to be a cut-off at which point you sort of drop out of the DNS regime and you come into the SIP regime. I hope that's helpful, but if there are any further questions, I'm very happy to answer them.

09:35

No, James. That detail is very helpful, thank you very much indeed. Moving on to—. Well, in terms of the fact that, Eleri, you'd said to turn to James for some of the more technical, legal aspects of the legislation and what's actually in the Bill, that tension between what needs to be on the face of the Bill and what's in subordinate legislation, we've had differing views on whether the balance is right. The Minister's argued that that balance is right, because the current drafting allows for necessary flexibility. Could I ask you both whether you would agree with that, or if you don't think that the balance is right, how you think that that could be rectified, please? James, do you want to go first on that?

Yes, gladly. Thank you. We totally support the idea that there needs to be flexibility and the regime needs to be able to respond to changing situations and background arrangements, et cetera, et cetera. From my perspective—and we have discussed this at NIPA board—we think that this is a bit too flexible at the moment. Well, it's not too flexible, we think there are areas where there should be greater precision on the face of the Bill. That basically comes down to better clarity on timetables and timescales for decisions and particular activities within the process.

So, for example, there is no time frame specified for the acceptance of an application by the Welsh Ministers. That is of concern to promoters and it's also of concern to other people involved in the system, because local authorities or Natural Resources Wales will have to plan their resourcing to respond to major applications within their jurisdictional areas. So, it is I think important that that time frame is set out. Equally, within the 52-week period for determination once the application is accepted, we would like to see a greater level of precision about how that 52-week period is broken down. We're not here to tell you it's got to be x weeks for this and y weeks for that, but we do think that there needs to be greater precision. And we just think that that will help everybody in understanding how the process is going to work.

One of the things with these systems that makes promoters nervous is not understanding them, and if they don't know what they have to do by when, there is an inherent level of nervousness, and it makes it difficult for people to plan. There are just practical consequences, in that if, for example, you're going to say that the acceptance period would be six weeks, in practice, that means the deadline for an application going in pre Christmas is the start of November, because nobody will want their six-week period running over the Christmas holiday period because officials lose time out of the process, simply because of the statutory holidays, et cetera. So, there are just some practical implications like that that I think need to be taken on board. Generally speaking, we would like to see a bit more specificity on the face of the Bill in that respect. Eleri, I don't know if you want to add to what I've just said.

09:40

It's an element of the nationally significant infrastructure projects regime that is applicable for larger projects in Wales and England. There is a lot more in terms of timescales on the face of the Bill, and I think that, actually, does work very well, which is in contrast with the experience we're seeing with DNS projects at the moment. Suspensions and extended determination periods are the norm rather than the exception, and it does need to flip around, so that it becomes more of an exception and that statutory time limit is adhered to in all but really complicated or novel issues.

I guess it's linked also to that point around the resourcing of public bodies, because the reason, I think, for a lot of DNSs ending up in suspension or extended determination periods is because we're not getting that full engagement at the pre-application stage, so then, when the application comes in, we're having all those detailed comments and, potentially, objections to have to deal with. I guess it comes back to having that resourcing all the way through.

Thank you, Chair. I wonder if I could ask you if there's anything that you haven't been able to say today in specifics about what should be on the face of the Bill and that you haven't submitted in writing, because you clearly have a good knowledge of this and how it's progressing. I wonder if you could submit that to the committee. But it's the specifics we need, what needs to be altered. You've mentioned a couple already. The reason I say this is because we've got a once and only parliamentary opportunity to get this right. We don't want to duplicate or reinforce problems that we already know exist, but it's the specifics that really matter. You've touched on a couple of them. It would be great if you could, if you have time, with a fine-toothed comb, tell us exactly what you'd want done, the A-Z of what should be on the face of the Bill.

I think we can do that. That's fine. We've had discussions about that within the NIPA board and with Eleri. I can't promise it'll arrive in the next 24-48 hours, but we'll certainly be able to get it down to you.

Thank you very much. Just finally from me, learning from what's happened already across the border and the nationally significant infrastructure projects review in England, is there anything that's come out of that that should have been taken into account in this Bill where you feel that that opportunity has been missed? It's fine if not.

I don't think there's anything that's really missing from the Bill, other than what we've said about potentially greater levels of specificity, but that's really related to learning from how the Planning Act 2008 works, not from the current review of the Planning Act system.

I want to say two or three things, though, if I may, which I think are relevant to how the Bill is going to be successful in the future. There does need to be a lot of thinking about how the fees system is going to work. That has been a big focus in England recently.

I think you may want to think about the level and detail of guidance that is issued around certain aspects of the system. For example, in England at the moment there is a push to potentially remove what they call category 3 land interests from landowner consultation, because it is extremely difficult and time-consuming. There are views that perhaps the consultation process can be simplified. That said, in the Infrastructure (Wales) Bill, the consultation process is rather more succinctly dealt with than in the Planning Act 2008, which I think is probably a good thing.

One of the other points, really, is that there does need to be a real focus on policy and guidance, and really good and clear policy and guidance that develop as thinking develops over time, and different decisions come out that adopt different approaches to different bits of decision making.

And then I think the other thing is there would definitely be a case in England for putting together a specialist advice unit that is available to public bodies, planning inspectors et cetera when specialist issues come up, and that would obviously be of assistance in Wales if that could be established within the Welsh Government as well. They're not things that directly go to the Bill, but they're all background that will help the Act work when it comes into force.

09:45

Thank you, James.

Fe wnawn ni symud ymlaen at Joyce Watson.

We'll move on to Joyce Watson.

Diolch. I'm going to move on to status and hierarchical planning policies, because there have been a number of expressions of concern about the specific provisions for infrastructure policy statements in the Bill, and you started talking about that, and they include the lack of provision for what form they might take, the fact that they might take precedence over 'Future Wales', the marine plan, and the process by which they would be adopted. Do you have some views on the provisions relating to infrastructure policy statements?

Yes. Thank you. I think from NIPA’s perspective, we think it is very important that these infrastructure policy statements are prepared. 'Future Wales' and the marine plan are excellent documents, they establish a policy framework, but they were not written with this process in mind. They operate at a national level, or regional level, primarily. One of the features of projects that go through the NSIP regime in England and the SIP regime in Wales is that, by definition, they're in the national interest, but a lot of the effects are local, and a lot of the effects are quite specific. If you look at national policy statements in England, for example, they have, in a number of respects, very specific policy tests and very clear guidance to decision makers about how the benefit and the effects of projects are balanced off against each other in the decision-making process.

One of the fundamental philosophies—it certainly underpins the NSIP regime in England, and I think underpins the proposed regime in Wales—is that the debates about the need for the project and how you balance need against effects are dealt with very clearly in policy, and that helps decision makers. The existing documents don't really deal with that, and we think there is a very key role for infrastructure policy statements in providing that clarity and clear and firm guidance for examining inspectors, and, ultimately, the Welsh Ministers, in terms of decisions.

Now, in England, there are a whole number of NPS documents, and it's not ideal; it's very difficult for the Government to keep them up to date, and one of the things NIPA has advocated for a while is a single national policy statement for infrastructure projects that then has annexes that deal with specific types of projects, so, ports, or roads or airports—whatever it might be—wastewater treatment works, and if that sort of document could be prepared in Wales I think it would be, and we think it would be, of great assistance to decision makers and all those involved in the system, because there would be a clarity of understanding about what the system was involved with and what it was trying to achieve and how it was going to achieve that, and, ultimately, how decisions would be made. As I say, NIPA have quite a clear view about that, and I hope what I've said is helpful, and Eleri, I'm sure, will want to add to it from the practical perspective of promoters in the system.

I don't have a huge amount to add to what James has said. I think those infrastructure policy statements would give us more certainty. It will give all stakeholders involved in the process more certainty. I guess it's quite useful to look at the statistics to date on the DNS regime. So, out of 25 projects determined through DNS and the Transport and Works Act 1992, which would also be brought into the new SIP regime, 16 projects granted, nine refused, so that's two thirds granted versus a third refused. So, I guess the stats suggest the policy is not sufficiently clear for anyone involved in the process, because they're not particularly positive stats if you're promoting significant infrastructure projects, and that's in contrast with the NSIP regime, where there is that clear national policy statement with that expression of the needs case and how to balance those impacts. The consenting rate for those projects is 90 per cent to 95 per cent, so, there’s a bit of a magnitude of difference there in terms of those policies and how successful they are, I guess.

09:50

Can I just add one further thought about infrastructure policy statements? Section 124 of the Bill has the process, or deals with them. It’s really quite high level—sorry it’s not 124; yes, it is, it’s 124. It’s quite high level. One of the points of learning you might want to take from England is that national policy statements can be judicially reviewed and quite often are. And that is a problem, because one of the things that can happen in England is that you can request that the national policy statement is reviewed. If the Secretary of State for the relevant department declines to do so, it’s a judicially reviewable decision. You might want to think about the extent to which you want to control the process of adoption of infrastructure policy statements and to what extent you want to clarify what can and cannot happen in relation to judicial review, to the extent you can do that, in order to give certainty for all stakeholders that, once the policy statement is in place, it will be reviewed on a regular basis, but it will not be capable of being shot at on a regular basis—

James, forgive me for interrupting you, but could you talk us through how that could work, please?

Well, there is a school of thought that if—in England, it’s obviously Westminster; it’ll be the Senedd in Wales—the Senedd takes an infrastructure policy statement through an adoption process that involves consultation, it involves debates in committee, debates in the main Senedd, and Members of the Senedd are able to make their views known and represent their constituents et cetera, et cetera, at that point everything’s been looked at pretty carefully. Unless you’ve got some real problem legally, should you then be able to, if you’re an objector, for example, just write in and say, ‘We think this has changed. Please can you review the policy statement?’, and then the Secretary of State or Welsh Minister saying, ‘Well, actually, we don’t think that is the case’, that becomes an administrative decision and therefore it becomes judicially reviewable? It’s just the idea that people can constantly challenge these things, and it just creates major uncertainty.

I’m not an administrative law expert, so, I’m not able to tell you precisely how you constrain judicial review, but I certainly think it is something that needs to be considered. I was, as I said earlier, heavily involved in Heathrow when that was being promoted; it’s obviously been suspended, because the national policy statement was judicially reviewed. Now, ultimately, that decision was overturned in the House of Lords and the Supreme Court. But, if you speak to people who are closely involved in that, the constant threat of judicial review to the national policy statement was a major, major concern to the promoters.

Thank you. I think Huw wants to come in on this. Did you want to come in as well, Jenny? No. Huw and then we'll go back to Joyce.

Yes. Just for clarity, this would need to be legally expressed on the Bill that’s in front of us that is now subject to amendment. We’d also have to consider, of course, the unintended consequences of that. So, Heathrow is an interesting one, because, as long as the policy underpinning Heathrow is still relevant and timely and up to date, then you could see some shaping of a legal clause that would say, ‘Subject to that, this could not be challenged by judicial review.' If, however, let’s say the climate change arguments, the air quality arguments had advanced to such a stage where the policy was out of date, you’d want that to be judicially reviewable in the Supreme Court or whatever. So, would I be right, (1) this would have to be legally expressed in the Bill? It’s no good to say, ‘A Minister stood at the dispatch box saying, “My intention is that this should not be challenged”'; it would have to be expressed in a line or lines in the Bill. Secondly, there would need to be lines in that Bill that actually put around it the provisos about when it could be challenged.

I agree with you entirely on that. One of the issues, I think, comes down to the fact that, in England, the NPS documents were meant to be reviewed every five years and they haven't been. If you look at the energy NPS documents, they are nearly over 10 years old; the ports NPS is over 10 years old now. They are currently being reviewed, but it's a process that is taking years, not months. And it is quite frankly too late. They should have been reviewed far earlier, and—

So—. Sorry. So, if I was—I am—a member of the public, I should have every right to challenge Welsh Government or, in another situation, the UK Government, if those policy statements have not been reviewed in a timely manner and are out of date. I should absolutely have that right and it should be enshrined in law.

09:55

I agree with you. What I'm saying is that there shouldn't be an ability for people to constantly question the policy with a view to delaying projects.

Yes. Okay. Sorry, Chair, I don't want to delay on this, but, again, if you or colleagues have any way that you think this could be expressed in law that was appropriate and balanced and protected the rights of citizens as well as put the rockets under Government to say, 'Keep your policies up to date', or whatever, we'd be interested in seeing that as a committee. Sorry to load more work on you, but there we are. 

No, no, we'll take that back to the board and discuss it and we'll provide some thoughts to you on that.

Finally, going back to the hierarchy, do you believe that 'Future Wales' and the marine plan are drafted in a way that gives sufficient clarity to developers—and it's really moving on from what we've just said—the communities and the decision makers on SIPs? And if you don't agree with that, do you have any advice that we can incorporate to make that the case?

Yes, thank you. I guess we've already discussed the stats for the DNS regime, so I guess—. Ultimately, though, I don't think 'Future Wales' and the marine plan give that sort of sufficient certainty or clarity to decision makers, developers, or communities in fact, and that's because it doesn't provide that clear steer to decision makers on how to balance the national need with the local impact. And I guess the way to rectify that is not to get rid of 'Future Wales' and the marine plan, but it is to bring in those infrastructure policy statements to give that clear steer that is required.

Happy? Okay.

Fe wnawn ni symud ymlaen—fe wnawn fynd nôl at Huw. 

We will go back to Huw.

Huw is going to talk us through some questions relating to significant infrastructure categories further. 

Thank you, Chair. We've been trying to get views on whether some things have been omitted from the categories, and we've had differing views, particularly in terms of things such as energy storage and hydrogen. And, in fact, from some local authorities, we've had very strong pushback in written submissions saying that things like hydrogen, for example, are very much a local determination rather than should be within these significant infrastructure categories. Do you have a view on this? Because it is absolutely true that something like an energy storage proposal or a hydrogen proposal is very local in its impact, and probably very often—not always, though—in its scale. But the contrary argument is that these are growing areas that should merit inclusion within it. So, have you views on those or any others that are omitted from the categories?

I think having that two-tier system I guess does potentially introduce some sort of uncertainty to the Bill, but I think on a—. Ultimately, I think that 50 MW threshold for compulsory, mandatory SIP is reasonable, as long as the opt-in and opt-out provisions enable projects to decide whether they should or should not be in that SIP regime. I think, with hydrogen, it's quite a new technology, so probably the smaller pilot projects will come forward first. They might be quite small, the local authority might be fine for them, but, as they get larger, it might not be appropriate any more, and it's about having that flexibility. I think James will touch on the opt-in and opt-out provisions, because he understands that legal side of it better than I do.

My understanding on battery storage, in any case, is that they're already devolved—well, they already, up to 350 MW, go to local authorities in any case. I think they were taken out of the DNS regime. I guess it's always good to have certainty, but you also need to have that flexibility to bring things into the regime as and when required or, in fact, also take them out. There are quite a few solar projects that would prefer to not to go through the DNS regime or the NSIP regime in England, the ones over 50 MW. So, it does depend on a number of factors: what the technology is, what the impacts are et cetera. So, yes, I think I'll probably move on to James in terms of how that works in practice.

10:00

Thanks, Eleri. Just on the hydrogen one, just to give you an example of something we're working on in England at the moment, which is a hydrogen project, it involves the import of ammonia from the middle east, where it's manufactured using 100 per cent renewables. To get it into the country requires a jetty, and the capacity of that jetty is an NSIP in its own right. So, the hydrogen project is an associated development to an NSIP, and there are a number of hydrogen projects in England that are NSIPs because they involve very long pipelines or similar things. Hydrogen is quite a tricky area, because if you just look at it in capacity, it might be, but it definitely has the ability to be an NSIP because of the way you get it into the area, for example—if it's coming in by ship, for example. I just thought I'd mention that in case that was helpful.

Just on the opt-in and opt-out provisions in the Bill, I was very impressed with those. I thought they were good. I particularly liked the idea that a project could opt out if, for example, it had a lot of local authority support, if the local population were in support of it. Is it, in that instance, helpful to take it to the Welsh Ministers, to tie up resource at that level, when actually it's perfectly capable of being dealt with at a more local level? The only caveat to that is that we do think there does need to be some guidance as to the sort of considerations the Welsh Ministers are going to take into account when they are considering whether to take a project into the system that would otherwise be outside the system, or whether they're going to allow a project that is in the system to go outside the system. There does need to be clarity as to how that decision will be taken so that it's equitable for all involved. Also, we do think there needs to be some sort of time frame for making that decision. Ironically, the equivalent provision in England doesn't contain a time frame, but generally speaking those decisions are taken within four to six weeks, last time I had a look at it. So, we think that would be helpful, but by and large we do think the opt-in and opt-out provisions are really good and get our full support.

That's really helpful. Thank you very much for that. I'm not picking up any strong views from you that energy storage and hydrogen in particular should be included within the categories, but the opt-in and opt-out provisions provide some flexibility there for consideration.

Could I just turn to the categories of SIPs and whether they're clear enough? There's one particular example I want to highlight with you. So, for example, here, in alteration or improvement of a highway, then one of the determining factors is whether it is likely to have, in quotes, a 'significant effect on the environment'. The query arises whether this puts too much ambiguity into it. Do you have any views on this and the clarity or the fact that they're open to interpretation with some of the language in the Bill?

I certainly think that one is very open to interpretation. It doesn't obviously link to any point of the EIA process. If it were to link to the EIA process, I think that would remove a considerable amount of that ambiguity. I think one of the other questions that arises, though, is who is making that decision. Is that a decision of a promoter? Is that a decision of PEDW, on behalf of the Welsh Ministers, or is it a decision by the Welsh Ministers? The example you've given, I think, would benefit from some clarification. And whether that clarification has to be on the face of the Bill is potentially a point for debate. It could be covered, again, in guidance or policy. But it certainly needs to be clarified.

Just looking at this rather more widely across the range of categories, we wondered, again, with respect to highways, whether the 1 km scale was potentially too constraining. We're bringing in an awful lot of projects that potentially may not need to be—. That said, there isn't a huge amount of road building planned in Wales, so that may not be too much of an issue, but we did wonder about that. Also, whether there should be an area criteria for highways, so the modification of motorway junctions, for example, if they involve a particular area.

The other point I did just wonder about was in relation to harbour facilities, because the qualifying criteria there are a tenth of what they are in England, and when I read the background papers to the Bill, I then understood the levels had been set by reference to the scale of ports in Wales, which I think was sensible, because it seemed to me that if you did take them to the scale, no harbour facility would essentially fall within the Act, so what's the point of having the Bill in the first place. So, I did initially wonder about harbours, but, I think, actually, the criteria for harbours is probably sensible, given you have that opt-out facility, which is to be policed by Welsh Ministers, I presume. 

10:05

Ocê, fe wnawn ni symud ymlaen at Janet Finch-Saunders. 

Okay, we will move on to Janet Finch-Saunders. 

Diolch. We've heard from numerous witnesses that the new system set out in the Bill will only function effectively if all parties involved in the process are properly resourced, for example our local planning authorities, statutory consultees, PEDW. Do you believe the provisions for cost recovery in the Bill are sufficient to achieve this adequate level of resourcing?

Thank you. I agree. I think I've said it a couple of times this morning already that the public bodies involved in this process from beginning to end do need to be adequately resourced. In terms of the Bill itself, I think there's insufficient detail available at this stage to actually comment. I think it's probably more of a question for local authorities, statutory bodies and PEDW. They understand the level of input required to conduct and to participate in examinations. But based on my previous public sector experience and feedback from local authorities right now on development of national significance projects, that £7,750 for a local impact report doesn't seem adequate to cover the local authority's input.

And it's also important to remember that it's not just the local planning authority element of the local authority that is involved. The planning officer is obviously key to co-ordinating that response, but you've also got input from highways, ecologists, environmental health. So, it's quite a big task for local authorities and for Natural Resources Wales—they're also a key stakeholder in that process. And, I guess, we need to make sure that, somehow, either centrally, or through the fee structure, those bodies are adequately resourced, as well as PEDW—obviously, PEDW needs to be resourced—and the Welsh Government as well.

As developers, we used to pay when—. I'm talking mainly about onshore wind projects. When onshore wind projects were going to the local planning authority, they were commanding the highest fee of £250,000. The DNS process is significantly less than that, so I think there probably is a gap there that does need to be filled, so that all stakeholders can properly resource their input to the process. 

Thank you. Last week, the National Infrastructure Commission for Wales and the Royal Town Planning Institute Cymru told us that developers were willing to pay higher fees if it guaranteed they were going to receive a certain standard of service. Do you support that view?

Yes, I totally agree with that. As I've said, we used to pay higher fees when it was going through the local authority process, and, arguably, I think we were getting a better service under that old regime, because not only are local authorities then able to resource their own input, but if they need to get specialist advice externally from consultants, they can fund that. With that £7,750, they can't do that. So, yes, in principle, in return for a good service—. And, as well, the fees need to be fair, proportionate, clear, transparent, et cetera. But, yes, in principle, developers would be willing to pay more for a better service. 

Thank you. My concern, coming back to you on that, is, as you've rightly pointed out, all the various different specialist skills we need, like environmental health. We know that our planning system in Wales is under huge strain. So, it's not just giving resources, is it? How can we be sure that we've got those specialist skills in Wales that we need? I believe it's bad in England too. We're 127, I think, or 121 planners short in Wales alone, and planning applications, currently, on massive hold. So, in time for this Bill to be effective, how do we get those skills in place?

Yes, totally. I think, talking to local authorities and statutory consultees, the resourcing—. It's not just not being able to respond; it's actually not having the people in those posts to be able to engage with projects. I think, as James mentioned earlier, it's the central expertise in the Welsh Government around major infrastructure experts or some kind of pooling of resource. I think it's unrealistic to expect the 22 local authorities and the three national park authorities—maybe four national park authorities in due course—to actually have specialists who understand infrastructure consenting in each of those authorities. So, is there a need for a more regional or central pool of resource that can be called upon as required? But they would work alongside the local experts in the local authorities, who are much closer to the detail of what happens in their local area. I don't know if James wants to add anything on the resourcing point.

10:10

I agree. I can certainly assure the committee that, speaking to clients of mine, I think they would be prepared to pay higher fees for a greater level of certainty and service, et cetera, et cetera, and I think they are very sympathetic to the resource challenges that the public sector faces, and we all understand why that is. But it is a very real problem and, as I said, they are sympathetic to it and would be prepared, I'm sure, to pay higher fees.

I do think the idea of setting up a specialist advice unit within the Welsh Government would be an excellent idea, and I think it would be an excellent facility and service for the local planning authorities, Natural Resources Wales and others to use if necessary. Certainly, if you look across the Government departments in England, you have the legislation being made by the Department for Levelling Up, Housing and Communities, but they don't actually determine very many applications at all. I think they've had one. They had a part involvement with the Thames Tideway tunnel. You've then got DEFRA who had very few applications, but are going to get deluged with water and wastewater applications over the next few years. The Department for Transport and the department of business, energy et cetera—they have a lot of applications, and they have specialist units, and they benefit from that. But having a central facility, I think, would be helpful.

The other point, just on resourcing, that the NIPA board and Eleri discussed the other day was that, in transitional phase, which we spoke about earlier, when certain projects are DNS and there are SIPs coming forward, PEDW might come under very significant pressure there, because they will have a residual number of DNS projects to deal with and they will be getting SIPs in as well. That could cause a bit of a bottleneck through the first couple of years of the new system, and that might need to be thought about.

And also, one of the issues that the Planning Inspectorate had when the regime came in in England was actually finding inspectors of sufficient experience and competence to handle these major applications, and they did have to go through quite a significant training-up process around a core group of inspectors, and then what they called a call-off group. And, to be fair to PINS, they did that pretty well. But it was a stage they had to go through.

Thank you. LPAs have told us that the enforcement provisions as set out in the Bill aren't clear enough. For example, they say it's unclear who should commence proceedings. Is it the LPA or the Welsh Government? There's also concern that—. Well, we've talked about resources, haven't we? What are your views on the enforcement provisions in the Bill?

I agree with them. I've always thought the enforcement provisions are very difficult for local planning authorities—or anybody, really. Not so much to understand, but to see how they're going to work in practice. It is worth saying that, to the best of my knowledge, nobody has ever tried to enforce against an NSIP in England, and I suspect part of the reason for that is because of difficulty in understanding how it would be done and who should take the lead. The fact that it is criminal proceedings, not civil proceedings, as would be the case under the Town and County Planning Act 1990, I think also makes local authorities nervous. That said, the very fact that the nature of the liability for building without an infrastructure consent in place or building in breach of an infrastructure consent is a criminal offence does make the promoters sit up and take notice. The nature of the consent is very detailed, so there is a certain amount of in-built discipline within the regime, as it were. But I do sympathise with what the planning authorities have said to you. Equally, that is a concern to promoters, because they need to understand if something's going to come at them, who is it going to be? And so they make sure they don't get themselves into that situation.

10:15

Thank you for that. We have a quarter of an hour left, and the information that you're giving us is very useful. I'm minded to extend this session for an extra five minutes at the end, if that will work for the witnesses. But I would ask everyone to be mindful of the fact that we, in that case, would have 20 minutes left. So, we'll move on to statutory time frames, and firstly to Heledd Fychan.

Diolch yn fawr iawn, Gadeirydd. Ac efo'ch nodyn chi am amser, dwi'n meddwl bod yna sylwadau eisoes wedi'u gwneud ynglŷn ag amserlenni statudol ar 52 wythnos. Felly, jest eisiau holi a oedd yna unrhyw beth roedd y tystion eisiau ei ychwanegu o ran y sylwadau cychwynnol ganddyn nhw.

Thank you very much, Chair. And bearing in mind what you said about time, I think that comments have already been made about statutory time frames of 52 weeks. So, I just wanted to ask whether there was anything that witnesses wanted to add in terms of their initial comments.

Na, dwi'n credu ein bod ni wedi siarad amboutu popeth sydd yn gysylltiedig â'r 52 wythnos yn barod, heblaw bod gan James rywbeth arall i'w roi.

No, I think we've talked about everything associated with the 52 weeks already, unless James has something else to add.

I was just saying, James—I don't know if the translation was working—but I was just saying I don't think we have anything to add. I think we've covered everything, but please do add anything extra you want to.

This is on—. Sorry. Yes, the translation isn't working. Apologies.

The 52 weeks you covered earlier—so, it was just if there was anything additional you wanted to note.

No. I think we just need to understand how that 52 weeks is going to be broken down. And there does need to be a recognition that, for the examining inspectors in particular, writing these reports up is a big task. You can't cut that short.

Ocê. Diolch am hynna.

Okay. Thank you for that.

Janet, quite a bit of this has been covered, but is there anything else that you wanted to add on this area?

No. You're happy. Okay.

Fe wnawn ni symud ymlaen at Jenny.

We'll move on to Jenny. 

Thank you. We've received mixed and contrary views about whether the examining authority should be able to decide on significant projects or whether every decision should be made by Welsh Ministers, given that, by definition, they are all significant projects. Therefore, the political accountability has to be important. Who'd like to go first?

Yes, I'll make some comments on this initially and then Eleri can follow up. We think it's a good idea to have that flexibility in the system. It was originally in the English system but was taken out, because it was felt that these are decisions that should be taken at national political level. We quite liked the idea that in Wales that may not have to be the case. Certainly for smaller, less controversial, simpler projects, allowing that decision to be made by the examining authority does seem to be a good idea.

I think the difficulty is if the infrastructure policy statements are not in place, devolving that decision down to an examining authority could be quite tricky and could result in decisions being taken that are out of kilter with whichever party is in charge in the Senedd. So, that does need to be thought about. That said, it is undoubtedly the case that in England some of the decisions have been taken on political basis. One of them, which, in my view, was a very obviously political decision, was then subsequently overturned in the court. So, maybe having the independent eye on it by an examining authority would be a good idea. But in broad terms, I think we do take the point that these are national projects and they probably need a degree of national endorsement. Now, if that can be devolved down to an examining authority, that is fine, but, again, I do think there does need to be a very clear policy basis for those decisions being taken at that level. And there needs to be some guidance as to when the decision will be devolved down and when it will be retained with the Welsh Ministers, so that promoters, local authorities, local stakeholders, local communities understand who is likely to ultimately make the decision.

Thank you. In your evidence, you do outline that there are some things you'd like to see being taken by written procedure, obviously in the interests of moving at pace to develop our renewable energy infrastructure. Could you just elaborate a little bit more on that, because, obviously, they're still going to be significant? Because the examining authority has that discretion at the moment in the Bill, to either decide things on written procedure, a hearing or an inquiry.

10:20

Eleri, do you want to deal with that?

Yes, I can do that. In principle, I think that's fine, as long as there's some guidance setting out some clarity as to the factors that will influence that decision. I think the most appropriate form of examination will primarily be written reps, and then hearings. I think local inquiries should probably be only used in exceptional circumstances. And I think those are the sorts of provisions—that's the process with the DNS regime at the moment, and I think that works reasonably well. Public inquiries—adversarial; they're not that accessible for members of the public either. They're quite time-consuming. Do they actually gain a lot more than a hearing would? I don't know. They probably, as I say, should only be used in exceptional circumstances, and try and streamline that process by mainly focusing on written reps and hearings.

Fine. So, under what circumstances would you see an examining authority dispatching a decision just by written procedure? Is it something that's so technical that nobody actually living in our country would be all that interested, or it was so similar to some other project—for example, laying cables to an offshore wind platform—that had already been examined for impact on nature?

I think if it's something that's been addressed a number of times previously through a consenting process, then, arguably, you can deal with it by written reps, or maybe a hearing. I guess novel or really complicated issues will probably need more scrutiny, and maybe when new technologies come through, you might need to have those issue-specific hearings, to talk about those technologies a bit more because they haven't been through that system many times. But I guess, James, from the NSIP regime—I don't know what you're seeing. I think the balance is probably struck quite well in that system at the moment.

I think it is. One of the features of the NSIP regime has been the propensity for examining authorities to ask hundreds of questions—and I literally mean hundreds—against very tight time frames. I don't think that helps anybody. I don't think there is sufficient thought being given to the nature of the questions that are being asked, whether they are really going to move the process forward, and whether they're actually, ultimately, going to be helpful to a decision being made. Because some of the questions we see on certain things are, quite frankly, ridiculous.

Now, the other point is that the process is meant to be inquisitorial, and so if you have highly technical issues, I think there is a process for having hearings into those technical issues, because I think it does help examining authorities and people to understand or to hear the technical explanation of what the issues are. But that only works as a process if the examining authority retained its inquisitorial process. What doesn't happen is if it doesn't work—. If you just get one person saying this, and one person saying the opposite, and they're not inquiring further, and trying to get to a decision—I think that process has started to fail a little bit in England, and it is really important that the examining authorities recognise and retain that inquisitorial function, because, ultimately, they have to make a recommendation.

Okay. I got that. I just want to go back to what you were saying about hundreds of questions that may or may not be relevant, or get used. How, in legal terms, could we stop people going on a fishing trip—you know, just asking questions, so that, 'I'll do it just to cover my back', as opposed to intellectually thinking, 'What is it I need to know'?

I'm not sure the answer is a legal answer, but I think the answer is in the training of the inspectors, and understanding that these are national projects. If you have a national infrastructure policy statement in place, that is telling you the basis upon which the decision should be taken. So, when setting questions, you should be really thinking about, 'What are the policy tests I'm being asked to determine here, and if this question is going to help me understand the position of the project in regards to policy, or is it going to assist my understanding of how the policy should operate?', because sometimes the policies do require a certain amount of interpretation. Those are the things that I think need to be asked.

10:25

Thank you so much. And finally, turning to community involvement, Janet has very kindly said that Heledd can lead on this. So, diolch, Janet. Heledd, I'm not sure if the translation is working at the moment. 

James, just to check, do you have the globe ticked at the bottom of the screen? If you press that, is it ticked on 'English'? 

Mi wnawn ni drio. Ydy hynna'n gweithio? Na. 

So, we'll try the Welsh translation now. The interpretation should be coming through. Is that working? Can we have a thumbs up? 

If so, I'm afraid all my questions are written in Welsh so I can't lead on this. Otherwise, I'll be translating them on the spot. Sorry.

No, utterly understandable. I'm very sorry about that. We'll try and fix that in the break. So, Janet, was there anything that you did want to come in on this, on community involvement? 

We touched on this, I think, earlier about the pre-application consultation requirements. I've raised concerns myself here that we have a huge project going through at the moment off the north Wales coast that will greatly impact Llandudno residents and businesses, and yet there's been—. The consultation process, to me, has been far too inadequate, despite promises that we would have far more community involvement. So, yes, I'm particularly keen to ensure that citizens, residents, know what's coming, know the implications of what's coming, rather than they find out when they start building the first turbine, because these are huge. 

Shall I take that? I'm not sure it was a question but I'll try and answer what I can on that point. 

What might be helpful—. Diolch, Janet. What might be helpful—. I know that Joyce wanted to come in on possibly something related and they could both be answered at the same time, if that's all right? So, I'll come to Joyce.

We've had concerns about the involvement in the community, and part of that community, of course, are applications that will come before us relating to the marine area, for example, perhaps some compulsory purchase. And, of course, a final question: is this Bill going to make Wales a more attractive place to invest in? So, those are the sorts of questions that we'd like to put to you, and if it is the case that Wales becomes more attractive, is it going to be equally attractive by the communities and stakeholders in equal measure? 

I'll take the point on—. In terms of engagement, we haven't seen the detail of the Bill in terms of when and how the public can engage, but we do expect the procedures, I guess, to be pretty similar to what they are now. I think it's important to recognise that these applications, they are quite technical. We are having to consult on vast amounts of detail—environmental impact assessments, planning applications, and if there is compulsory acquisition, that's an additional element as well. So, I guess maybe it feels to members of the public who are not familiar with the process that that is quite a lot of information to get through. We do try to distil that down. I think developers of infrastructure projects do typically go above and beyond the minimum statutory requirements in terms of consultation, will typically do informal consultation early on in the process that will then inform the detailed design and the environmental impact assessment. And then, prior to submission, we will go back and do that formal pre-app consultation, and at that point we do have to publicise and consult on the full draft application document, which can go to quite a few volumes of lever-arch files in many cases. But there is a need to strike that appropriate balance between the consultation being robust and also proportionate. As an example, when we go out to consult with local communities on projects we will send tens of thousands of postcards to local residents, and often you’ll only get tens or hundreds of responses back. I think it’s recognised that there’s a vocal minority that are typically opposed to projects. In my experience, they always find out about the project, they’re always aware of it, but the silent majority, I guess, are indifferent or supportive and don’t engage as much in the process. So, that’s my experience of that. And—

10:30

Eleri, I'm so sorry to interrupt you. I'm afraid we are drastically running out of time here. I've got Jenny, who wanted to ask one final question, and then I'll go to Janet for a final question as well, and then we'll go to you for your final remarks, if that's all right. I'm very sorry to rush you. It's because of time constraints, I'm afraid. I'll go to Jenny firstly.

Are the pre-application consultation requirements in the Bill sufficient to ensure that developers actually do the spade work on this before they actually submit their application? 

If they're as we expect, if they are going to be similar to what we are required to do under the DNS regime and for major applications, and under the NSIP regime, it might be that that is sufficient. As I say, developers will go above and beyond in any case. So I guess it's a difficult one to get the balance right. It needs to be robust but proportionate. 

Could I just add that, in the context of the sort of advice I end up giving as a lawyer to promoters of these projects, consultation is red-flagged as a risk? Because if we get it wrong, it's a reason not to accept the application. So Eleri's right—promoters are going over and above what they are legally obliged to do. Now, whether people are listening to that is a different issue, and whether in practice more can be done to help local communities understand and get people to listen—. But one of the positives, if any positives came out of COVID, is that the level of consultation on nationally significant infrastructure projects has got a lot better, because it is done online, it is done in person, it's done in meetings, there are helplines, there are translation services to help hard-to-reach groups, et cetera. So actually I really do think the promoters are going over and above what they are purely legally required to do.

We'll have that discussion another day. But are you a fan of the Planning Act 2008, which enables the examining inspector to consider whether the material submitted by the developer is comprehensive enough to allow meaningful examination to take place, and therefore would you want to see a similar provision in this Bill?

And just before you answer that, Janet, did you have a final question that was related to this, very briefly?

Yes. On the Awel y Môr scheme—it's to Eleri—are those postcards going to go out to my residents? Because there's absolutely nothing at the moment. 

Perhaps it might be possible for that to be taken up in writing, just because I'm thinking of the time, because we've only got a minute left. Is that all right, Janet?

Do you think the Planning Act 2008 should include the examining inspector being able to say, 'We need further evidence here. This is incomplete'?

When you look at the legal tests for acceptance of applications, the application has to be satisfactory. What happens in practice is that, if the examining inspectors don't consider it to be satisfactory, they phone up the promoters and tell them to withdraw it. So, if you have that sort of test, and that sort of practical reality, and if you have proper pre-application discussion between the applicant and Welsh Ministers or PEDW, then you shouldn't get into a situation where somebody has to turn round and say, 'This application is not complete'. 

You shouldn't, but nevertheless would you not oppose the examining inspector being able to say, 'Go away, this is insufficient', or do you think that what you have already—

I don't think anybody could sensibly argue you shouldn't be able to do that if the application was incomplete. If the application is incomplete, it's incomplete. I think in practice what happens is a phone call's made and it gets withdrawn.

10:35

Thank you very much. I'm sorry that we've run out of time. There will be other questions that we'll be writing to you with, so thank you for that. Thank you for your evidence this morning. A transcript of what's been said will be sent to you to check for accuracy.

Ond am nawr, diolch yn fawr iawn.

But for now, thank you very much.

Members, we will break for just under five minutes, and we'll be back live at 10:40. Diolch yn fawr. 

Gohiriwyd y cyfarfod rhwng 10:35 a 10:41.

The meeting adjourned between 10:35 and 10:41.

10:40
3. Bil Seilwaith (Cymru) - Sesiwn dystiolaeth gyda datblygwyr y sector ynni
3. Infrastructure (Wales) Bill - Evidence session with Energy sector developers

Bore da, croeso nôl. Rydyn ni'n symud yn syth at ein hail sesiwn tystiolaeth y bore yma. Gofynnaf i'n tystion i gyflwyno eu hunain ar gyfer y record. Byddaf i'n mynd at Matthew yn gyntaf, sydd yn yr ystafell.

Good morning, welcome back. We're moving straight on to our second evidence session of the morning. I'll ask our witnesses to introduce themselves for the record. I'll go to Matthew first of all, who's joining us in the room.

Bore da. Matt Hindle, I'm head of net zero and sustainability at Wales & West Utilities, the gas distribution network.

Bore da. My name is Liz Dunn, I am a partner at law firm Burges Salmon, and I'm here representing RenewableUK Cymru.

Good morning, all. I'm Tom Hill from Marine Energy Wales, which is an industry representative body for the nascent floating offshore wind, wave, tidal stream and tidal range energy sectors in Wales.

Thank you all very much. If it's all right, we'll go straight into questions. The first question is for Matthew specifically.

In your paper, you say that the current development of national significance regime puts Wales at a disadvantage compared with other countries in the UK; that it could cause problems for developers and communities to engage in the process. Do you think that the Bill addresses those issues, please?

Yes, we think the principles of the Bill are absolutely correct in terms of creating a single regime for significant infrastructure projects. That's the key point. Under the current DNS regime and planning regimes in Wales for these sorts of projects—. Currently, if we were considering a project, for example, around hydrogen pipelines, which is our core interest in this area going forward, we would need to apply for a range of different consents, for a range of different approvals, to take forward that sort of project. So, putting that under a single regime will aid that sort of significant infrastructure project—and we believe it will aid engagement in those proposals, as well—because it will make it much simpler for communities or other stakeholders to have clarity over the application, rather than seeing a range of different applications for different orders, which they then have to engage with.

Thank you very much, that's very helpful. And, then, a question to everyone. Everyone doesn't have to answer every question, by the way, but if you want to come in on anything, if you indicate by just showing your hand, please.

We've received evidence calling for clarity on how the transition processes will work, going from the current setup to new processes. How do you think that that could be addressed and achieved through this legislation, please? I'll go to Liz first.

Thank you. Picking up on the first question you asked, I think there is general support for the Bill and for a change in the regime. We saw, with the changes that came through in the Wales Bill, that there was a real challenge with the consenting of infrastructure projects. We had a bit of a sticking plaster put forward, I think, with the DNS regime, and this is a really great opportunity for Wales to set a clear and consistent consenting framework for infrastructure projects, including energy and other projects.

The key element where there has been concern expressed across the board is the lack of detail on the face of the Bill. This does feed into questions around the transitional arrangements. The Bill itself seeks to provide quite a high-level framework, and I understand, I think, the reasoning behind the Welsh Government deciding not to put a high degree of detail on the face of the Bill. But the lack of that detail has made it very difficult for parties to actually engage with the bits that will concern them, like, for example, the transitional arrangements, because there's nothing to discuss.

The transitional arrangements are incredibly important. The committee will know that the types of infrastructure projects that will be brought forward under this regime take many, many years to plan and deliver. These aren't just thought up overnight. Many projects take two or three—or even more than that—years in terms of the early planning and environmental work that needs to be undertaken. So, the sooner the Welsh Government consults on the transitional arrangements and is clear as to whether projects have an opportunity to opt in or out of the regime, and what work has been done in the early stages of a project that could carry over into the Welsh infrastructure consents regime—. The sooner that information is put out, the greater confidence there will be in terms of the way that the regime works.

When the Planning Act came out in 2008, there were quite clear provisions around the transitional arrangements—those matters that could be carried over and those that couldn't. It allowed those that would be bringing projects forward in the regime, and those that would be involved in them, to understand whether this was something that they wanted to opt into or out of, and the circumstances in which they would be able to do that.  

10:45

Thank you, Liz. I don't see Tom or Matt—can I call you Matt—saying that they want to come in on this, so in the interests of time, I'm going to move on to Huw, who is going to lead us through significant infrastructure categories.

Thank you very much. If you've seen our proceedings before, you will have seen that we are covering some of the same areas. But we would be interested in your views on whether the categories of significant infrastructure projects are right in the Bill, or whether there are things that are missed. In particular, things such as energy storage, hydrogen, gas pipelines, and so on. Again, you don't all have to answer this, but if you have a particular view, could you make it known to us? Could I start with Matthew in the room here?

Yes, of course. Our principal view on the categories is that the omission of pipelines and gas storage are significant oversights in the Bill as currently drafted. If we look at the categories that are in the Bill, there is provision for liquefied natural gas imports, there is provision for electricity distribution and transmission lines, and there doesn't seem to be a good reason for the exclusion of gas pipelines.

That's of particular interest to us, as we look at how the gas distribution network in Wales can support decarbonisation and the delivery of the Welsh Government's net-zero goals. We have a particular proposal as part of the south Wales industrial cluster for HyLine Cymru, which aims to connect low-carbon hydrogen production, particularly in Pembrokeshire, with the industrial demands around Swansea bay and Port Talbot, which would be a 130 km new-build hydrogen pipeline. That's the sort of infrastructure that we would expect to be within the scope of this legislation, but that isn't currently covered.

Okay, but that's specifically on pipeline, and the transition from gas to hydrogen, potentially, within those pipelines and so on—not the other aspects of hydrogen, in terms of hydrogen production, hydrolysers, et cetera.

We think that there could be a case for some provision for major hydrogen production infrastructure. That probably depends on the scale of those facilities. So, that would need to be in the detail of the provisions. But pipelines are particularly important, given that they typically cross a range of local authority boundaries and would have a range of separate consents associated with them. They are the most critical omission from our perspective, but storage and production would also be worthy of consideration.

10:50

That's great. Thank you. Liz, I wonder whether I could come to you for any views that you have on those. Oh, sorry, Tom; I’ll come to you in a moment as well, but if I could go to Liz first of all, and I don’t know whether you want to bring in any views you might have on the issue of solar energy and the thresholds as well, because I’d be interested in that.

Thank you very much. I think, picking up on Matt’s points around the general infrastructure categories, I think in general, they’re okay. There are elements that are not present that we’ve discussed, and particularly specific types of pipeline. In my view, it’s very difficult to anticipate very, very far ahead as to the types of technology that may come into the regime, and, having been involved with the Planning Act 2008 regime since its outset, for example, large-scale solar wasn’t anticipated as coming into the Planning Act regime, but has done so, and the system has kind of evolved to allow that to happen.

It seems to me that to have an ability to bring other types of project into the Welsh infrastructure consents regime is an important one. It may be something, in terms of those being able to opt into the regime, you want to talk about in a while, but that element of the system is going to be very important, and having clarity as to the types of projects that would be considered to be suitable for the Welsh infrastructure consents regime and the criteria that the Welsh Government will apply to determining whether or not those projects can come into the regime, given the additional consents and benefits potentially that come from that, again is very, very important.

In terms of the discussions around hydrogen, it could be very helpful to have hydrogen production itself as a category. We’d need to think carefully about the size and scale of those projects. Typically, though, my understanding is they tend to get connected to energy projects and, particularly, new renewable energy projects, and then you’d be looking at the infrastructure that supports those projects, whether that’s pipelines or others. So, it’s about bringing those elements of a scheme together to be able to deliver the wider scheme within this regime.

In terms of your question on solar, as I said, solar has been something that has very much come into the nationally significant infrastructure project regime and, clearly, there is a lot of interest in large-scale solar development in Wales at the moment. There has been a lot of discussion for many, many years in the solar context around whether the capacity of a solar project should be measured in DC—which is direct current—or AC, and lots of considerations about which was the right approach, because, typically, other types of energy projects are measured, in terms of their installed capacity, on a DC basis.

The UK Government has just put out its amendments, its second round of amendments, to the energy national policy statements, and they now make very clear how the capacity of a solar scheme should be measured for the purposes of the Planning Act regime, and that is on the basis of AC installed capacity with the inverters taken into account. Our suggestion is that that should be carried over to the Welsh infrastructure consents regime in order to create consistency across those two regimes. Otherwise, there is a risk that Welsh Government is measuring—or, for the purposes of the infrastructure consents regime, the measurement is on DC capacity, which is going to be different and create an non-alignment with the Planning Act, where schemes of above 350 MW in Wales would remain to be considered.

There is a general point there that I just wanted to make around the opportunity that this Bill brings to really tidy up some of those inconsistencies across the different legislative and consenting regimes, so the Planning Act and how that will fit with the Welsh infrastructure consents regime, and I think it’s really important that time and effort is taken to make sure that those regimes do align in the way that they need to.

That’s fantastic. When you talk about legal and constitutional things, I’m in the right head space. When you talk about AC/DC stuff, it takes me back to my O-level physics exam and diagrams, on which I was lost at that time, and I'm still lost, but thank you very much for that. Tom, you wanted to come in on this.

10:55

Yes, it was just that I wanted to add a point around the thresholds, and, yes, I wanted to really just maybe ask a question on the logic for lowering or the scenario where we're lowering the lower limit to 1 MW for offshore generating stations. This industry is still in quite nascent stages and test and demonstration projects are really vitally important to the industry. Often these projects are publicly funded and they are not always grid connected, so they really benefit from a streamlined, simplest form of consenting process and might not fit into this Bill.

Thank you very much. If there's anything else you'd want to send us on that, we'd be very grateful—with some more detail on it, Tom. Thank you very much.

Could I just ask you for your views on whether the SIPs are clear enough? We picked up in an earlier session that some of the language could be open to interpretation, particularly, for example, a highway is a significant infrastructure project if it's likely to have, in quotes, 'a significant effect on the environment.' Is there anything either related to that example or any others where you think the language may not be crisp enough within the Bill?

I'm happy to come in on that one. I would agree that reference to, effectively, subjective tests is not helpful within the Bill, and providing far more specific thresholds will be more helpful in terms of categories of works. I think that reference to a likely significant effect is probably reference to it being determined as needing an environmental impact assessment under the EIA regulations, but it doesn't say that that project requires an EIA under the EIA regulations. So, from a legal perspective, I think the clearer you can be, or the Bill can be, around the categories of works that are definitely strategic infrastructure projects, will be helpful because what is really important in this regime is that there's certainty as to where it applies and where it doesn't apply, and a lack of ability for there to be that subjectivity, particularly with those categories that are on the face of the Bill.

So, do you think, Liz, that that requires clarity on the face of the Bill in that terminology or could that clarity be given, along with things like other optional thresholds, within guidance?

I think it should be on the face of the Bill. I understand that there's an intention for there to be quite a significant amount of—. I suspect it'll be regulation rather than guidance that sits alongside the Bill. The more regulation and the more guidance there is, the more opportunity there is for people to get it wrong, because you have too many things that you need to refer to—too many. To have those thresholds very clearly on the face of the Bill I would say is essential to providing that clarity and certainty.

So, again, I guess my ask, Chair, to our witnesses today is, if you have specific proposals around wording that may assist the committee in giving that clarity on all the things we've covered, that would be of real help.

If you could write to us if you do have any specific suggestions of changes. Great.

Diolch, Huw. Fe wnawn ni symud ymlaen at Joyce.

Thank you, Huw. We'll move on to Joyce.

Joyce will lead on questions on status and hierarchy of planning policies, and cross-border issues to start. Joyce.

Thank you. So, the Welsh Government has indicated that it doesn't propose to introduce any policy statements other than for novel technologies or issues. In its paper, on the other hand, RWE disagrees and strongly encourages the Welsh Government to reconsider and introduce policy statements covering the developments of new energy infrastructures. Do you agree with that?

I'll explain why, from RenewableUK Cymru's perspective, we think that specific policy is needed in this area and then perhaps if Tom or Matt wanted to comment on that. The success and the workings of the Planning Act 2008 on nationally significant infrastructure projects have been absolutely underpinned by the set of national policy statements that sit with those. Many people will be aware that they've been in place for some time and that there have been revisions coming forward on those, which I'm hoping will be adopted sooner rather than later. But the clarity of the policy that sits within those national policy statements, particularly for energy but also for water, for transport and for the other key areas, has been incredibly important to provide clarity to those promoting projects as to the issues that are important in considering those projects, to decision makers on how you balance impacts against benefits of schemes and, where there are conflicting issues, how you measure those two things up. They've been critical to demonstrate the need for those projects coming forward, and they have, as I've said, been absolutely critical to the projects that have come through that regime and to the lack of challenge. 

Working in the DNS process at the moment is a challenge, and it's a challenge because of the lack of resource that there is to support these projects. It's also a challenge because, frankly, there isn't really a very clear set of policies around the determination of these projects. We've done some work looking at the statistics of refusals and those projects that have been refused by Welsh Government against the inspector recommendation—and this is where an inspector has actually worked through the six months or nine months or year or two years of the examination of those projects—and 44 per cent of the refusals of DNS projects that have happened so far, or four out of the nine, have been where Welsh Government has refused against inspector recommendation. So, there's clearly a gap somewhere between what inspectors and promoters think Welsh policy is saying and doing and what Welsh Government believes that policy is doing.

So this, again, is an opportunity for clear policy statements from Welsh Government to explain in those key areas, those strategic infrastructure projects, what the policy is that they are seeking to apply, what promoters and those engaging in the process are required to do to bring their projects through, and what the issues are that are of key concern in respect of those projects. And having those national policy statements in place—. My bet would be that, if they were to be in place, a lot of issues that there are with the current DNS system around timings, around uncertainty, around a lack of engagement would actually be helped significantly because you've got a much clearer policy framework against which those schemes are being considered. 

11:00

I'd support what Liz has just said. I think the brief thing I would add is that one of the helpful aspects of the Bill—I think it's clause 53—shows that the infrastructure policy statement would have precedence over other aspects of the regime. That clarity is very, very helpful when we're considering the way in which we would take a major project through the regime. So, I think the logic of that, then, leads you to say that the infrastructure policy statement should be broad and across existing areas as well as new.

So, if I can, you started off where I was going to continue, so that's useful. So, having said what you've just said, how do you think that the infrastructure policy statement should take precedence over 'Future Wales' and the marine plan? You've already started that conversation. And I'd be interested in your views on the provision relating to the infrastructure policy statements, which we've just discussed as well. 

Matt, do you want to go first on that? [Interruption.] Oh, forgive me. Liz.

Well, Liz, do you want to go first and then we'll come back to Matt? Liz.

Yes. I think the Bill, the Act, itself can be very clear as to how the policy hierarchy sits and which policy takes precedence if there is, indeed, policy to take precedence. If those national policy statements or infrastructure policy statements are put in place, then, as is done under the Planning Act 2008, whilst they may be the dominant policy, it's very clear from the provisions of sections 104 and 105 of the Planning Act, that national and local policy is also a consideration to be taken into account. So, they can be brought into the decision-making process and be an important part of that decision-making process, and also we'd expect that if there were infrastructure policy statements in place, they would be consistent with 'Future Wales' and the marine plan as far as possible. I mean, you'd be aiming for consistent policy at the national level as far as you could.

11:05

I think the other thing I would add to that, from an energy grids perspective, is consistency, then, with the 'Future Energy Grid for Wales' recommendations, which have made some very clear points around infrastructure requirements, both for electricity and also consideration of hydrogen infrastructure within Wales. But as has been said, that clarity of precedents is critical when we're looking at how we would take those projects through the regime.

We're going on to talk about the grid and the infrastructure that surrounds it, and of course visual impact is of a big concern to everybody. I know enough about this, since there are big proposals in my area. So, how will the policy help both those people who are going to be affected by it, but also the investors in it?

From our perspective, this is where the omission of gas pipelines from the legislation is the key issue to resolve, because we see from an energy grid perspective and from the perspective of delivering what Wales will need for the future of its industry and other areas, including home heating and power generation, that hydrogen pipelines will have a very major role to play. It's welcome in the Bill that the provisions around land include rights over land as well as acquisition of land, because clearly if we were putting a new pipeline in place, we wouldn't necessarily be acquiring land for that; we would be seeking rights over, or, more precisely, under the land, to put that pipeline in place. So, from our perspective what's important there in terms of visual impact and engagement is the process of getting the infrastructure into the ground. Clearly, one of the advantages of a pipeline once it's operational is that it largely has no visual impact whatsoever and that's a key benefit of that, from an energy infrastructure perspective.

Can I add something there? The energy national policy statement, and there is the electricity networks national policy statement—. The way that they're structured is that they explain the impacts or effects that every type of project will have. So, they discuss those elements that are unavoidable for a particular type of development, and they explain to promoters but they also explain to the public and to regulators those elements that—. If there is going to be an overhead line, it has to be overhead, so your starting point is it has to be overhead. But then they go in to discuss the various elements that the decision maker is expecting a promoter to have considered before determining whether an overhead line is the most suitable approach to take, and also those elements that are expected in terms of assessment, about the provision of mitigation, and other elements about bringing the scheme forward. So, they set a very, very clear framework for projects that come forward, to say, 'If this is the type of project you're bringing forward, these are the things that you need to do', to, 'These are the things that are important', 'This is where we want to see mitigation', 'These are the types of effects that are unavoidable, but these are the ones where, actually, we want to see you being able to do things or change the way that it's done.' And that's the way the policy is set out. It therefore gives a very clear framework for those promoting in the regime to say, 'Okay, if this is what I'm going to do, I'm going to need to do that but I'm also going to need to do this and this.' And the public engaging in the process, to say, 'These are the sorts of areas where actually we can have an involvement, we can change the proposals', and for decision makers to say, 'If 1, 2, 3 and X, Y and Z have been met, then, yes, consent is going to be granted. If any of them haven't, then, clearly, that creates a different situation, and we need to look at it in more detail. So, they do provide—they can provide—that very helpful framework for projects coming forward in terms of assessment, and what the design scale and scope of those projects is. 

11:10

Okay. The other—. I'm going to move on now to cross-border issues, because the borders are pretty porous. So, in your opinion—and we're talking about land and sea here—how could the Bill be improved to provide more clarity in this area? You've already talked about differentials—possible differentials—in the Bills in England and here in Wales, but there may be other issues, and RenewableUK Cymru do particularly refer to this area. 

Thank you. It is an area that was raised in RenewableUK Cymru's response, and it was specifically in the context of cross-border overhead lines. But I think the point applies—I think Tom mentioned it—in the marine context as well, where you may have cross-jurisdictional projects. It's a plea, really, that when the Bill is put in place, these things are thought of and planned for. The current drafting of the DNS regime, and the changes that were made to the Planning Act, are not perhaps as clear as they might have been, and in respect of cross-border projects, create quite a degree of uncertainty—not uncertainty, but complexity—as to the correct consenting regime for a cross-border overhead line project. And, again, it's important for the regime, and important for the delivery of projects, that it's clear as to how this regime will interact with the Planning Act process, in terms of where you have a cross-border project that—. So, this is particularly in the context of 132 kV overhead lines, where the current drafting in the Wales Act—and taking account of the Planning Act—is not clear as to how those cross-border projects should be dealt with.

I think we can anticipate there may well be more cross-border projects. It is dealt with in the Planning Act and elsewhere, in terms of cross-country pipelines and things like that. So, it's a plea, again, and, if it would be helpful to be providing some drafting or some wording to actually be able to address that point—

If people know what the consenting regime is, but also where there is an interaction between a Welsh infrastructure consent and a nationally significant project, how that is going to be managed—. Because the worst case would be to have to apply for a Welsh infrastructure consent, and a nationally significant infrastructure consent, at the same time for a project, which I would suggest completely undermines the purpose of both regimes, which is to try and streamline process and consenting and make it simpler for people.

Thank you, Liz. And if you could provide some suggested drafting, that would be very useful, please. And I think Tom wanted to come in on this as well. 

Yes, just to agree with much of what Liz said. I think clarity is definitely needed around how projects that could potentially have the actual generating project outside Wales's territorial waters, but cable infrastructure and cable landfills could be well within Welsh—. So, it's how those projects will interact with the various systems, yes. I haven't got any suggestions on how we could make it clearer, but I think, definitely, some work needs to be done on clarity. 

I'd also add to that, Tom, that it's worth remembering that the NSIP threshold—. So, for projects that are in English waters, the threshold is 100 MW, but for projects that are in Welsh waters, the threshold is 350 MW. So, you have, potentially, got quite a confusing situation if you've got a scheme that is in both English and Welsh waters, in terms of its generation. 

Ocê. Mi wnawn ni symud ymlaen. 

Okay. We will move on. 

We'll move on to community involvement and Janet is going first on this. 

The Minister has told us the new process will make it easier for the public to engage with a system because a number of consents will be rolled into one. Do you agree with that statement?

11:15

Yes, I'd broadly agree. We set out in opening remarks, I think, that the complexity of the current regime and the fact that significant infrastructure projects, like gas pipelines, would require applications, not just to a range of planning authorities, but also for a range of consents and orders, which, if they're brought within this Bill, would be simplified, I think helps the applicant, but absolutely will help the communities who are seeking to engage with any proposal, and other stakeholders who are seeking to engage, to understand from pre-application and then through the process what the project is, what impact it's going to have, and know how to respond and make their voice heard. I think it would be much clearer to have that in one process.

So, to date, that hasn't happened on all large infrastructure projects, so do you believe that this particular Bill is going to actually make citizen involvement more at the centre of it?

The principles of it should, yes. There's clearly detail to follow in regulation and guidance that would have impact on that. But the principles set out in the Bill and the provisions, as we can see them today, look much clearer for everyone involved on all sides of the process.

Thank you. I hate to sound like a broken record, but the lack of any detail on actually what's going to be required for pre-application consultation, save the short list in, I think it's article 30, is quite unhelpful. Again, the experience from the Planning Act regime is that public engagement in this process is absolutely essential for its validity, for its credibility, and to ensure that projects can be delivered and can be built. I would like to make a plea, if anybody out there is listening, about what not to do in terms of pre-application consultation requirements. The current DNS system, which requires statutory consultation on a draft application, is dreadful.

I did say that when I was consulted as part of the setting up of the DNS regime. I said, 'Please don't do it', and nobody listened to me. Please don't do it, it really is a terrible time to consult on an application. The developer has prepared their application and it is a great way of disempowering a community from actually being able to get involved in the process. Most of the developers that we work with and across the board do do a lot of very good pre-application consultation, it's just not under that statutory umbrella. I'd also urge you to look at the work that the Department for Levelling Up, Housing and Communities is doing on revisiting the consultation requirements under the Planning Act, because that has become too focused on the statutory side of things, producing complex documents that the public can't engage with, and there is a real issue around consultation fatigue with these large projects. So, the details of what is required for these projects, for Welsh infrastructure consent, is really important. It's getting that right, listening to what's happened in other regimes, and again another plea—please don't have 15 different sets of regulations, with different bits popped into different areas and amendments to the TCPA regulations. Please keep them all in one place so that they're simple to understand for everybody and simple to follow.

So, what are your views, then, on the pre-application consultation requirement set out in the Bill? Do you believe they do enough to engage communities and individuals in an effective manner? Because, too often, I notice on big applications, major infrastructure applications, sometimes, if you do get a vocal group, they're sort of, 'Oh, it's them’, rather than—. Sometimes, people do feel more energised and exercised than others, but, as an elected Member, say for Aberconwy, I want as many of my residents to know what's coming and to feel that they've been involved in the process and that it hasn't been done to them. And I'm waiting for that yet on a major infrastructure project, because I haven't seen it as yet.

Well, as I said, the current DNS regime isn't set up to do that. That isn't where the consultation takes place, and it's actually very difficult to comment on whether this Bill will achieve what it's going to do because, as I've said, there's absolutely no detail. There are very bare bones, in that promoters will be required to consult and the detail will be in the regulations. So, until those regulations are put out and published, it's going to be very difficult to say whether it will have achieved what's needed. I'll say what I said before: do look at what the Department for Levelling Up, Housing and Communities are doing to ensure that consultation and engagement on nationally significant infrastructure projects, which, let's remember, also do apply in Wales, will be more effective.

11:20

The Planning Act 2008 allows the examining authority to consider whether material submitted is comprehensive enough to allow meaningful examination to take place. Has it ever been used in England, and therefore, how useful would it be in this Bill? Does anybody have any view on this?

I mean, there is a validation and an acceptance process for those DNS applications at the moment and for nationally significant infrastructure projects. So, there is a test to say, 'Is this application good enough to go through the examination process?' Under the Planning Act, schemes have been and are refused to be accepted for examination on the basis that the information isn't adequate. None of the schemes I've been involved in, thankfully, have done that either in England or in Wales, and I don't know whether Planning and Environment Decisions Wales are refusing to accept applications on the basis, at the moment, under the current DNS regime. I think it is an important check and balance, to make sure that the application is robust and there's sufficient information to be able to take it through examination.

The challenge that there is at the moment on DNS applications isn't, I suggest, the quality of the information that's being provided; it's the lack of engagement from statutory consultees, from local authorities and statutory bodies in either the pre-application process—broadly in the pre-application process—to be able to actually identify and address issues. Every single project I am working on at the moment, there's been a lack of engagement from local authorities or key consultees on matters that are then raised after the application has been accepted by PEDW, at the post-application consultation point, and that's why projects are going into suspension. It isn't because of—

It isn't because of low quality, it's because the system isn't working to get that engagement in the early stages when things could actually be done differently.

I've got that. So, is this clause something we should stick into our Bill, so that there is that guarantee that applicants will simply not lodge an application formally until they've done the consultation, the community involvement that's required?

I think it's important that there's a check and balance before applications are accepted. I think, again, it's important to look at what the Department for Levelling Up, Housing and Communities are doing, because they are looking at—

—a pre-submission—. Can I just finish? A pre-submission adequacy check, which actually isn't just about what the developer's done, it's about whether the statutory bodies and local authorities have engaged properly in that process as well, and that is an important part of the pre-application stage.

I'd add one thing, which I think applies to the role of the examining authority more generally as well, which is the clarity of the criteria that they'll use, whether that's in examining pre-application material or in how they're taking decisions about the powers that they have, and the routes through which a project's being taken is absolutely critical. And the Bill makes provision for that, but, of course, seeing the detail will be crucial.

Yes. One question I did have was with the requirements for the statutory pre-application consultation. Following this procedure, an application is made to the Welsh Ministers under the statutory powers. Generally, this is followed by examination from the independent Planning Inspectorate, which could include a public inquiry. The inspector will produce a report, making recommendations to the Welsh Ministers. But who will make that final decision? Will any previous pre-application consultation with both the statutory consultees and the—

11:25

Okay. Great. We have 15 minutes left of our scheduled time. If it's all right with witnesses, I'm going to extend the session by five minutes, to finish at a quarter to, if that's all right. So, we'll have 20 minutes. I would make a plea for brevity where it's possible, though, please. We'll move on, firstly, to resourcing, with Janet.

Right. I'll just find where I am here. Right. We've heard from numerous witnesses that the new system set out in the Bill will only function effectively if all parties involved in the process are properly resourced—LPAs, statutory consultees—

Actually, Janet, do you mind if I—? Forgive me for interrupting you. Because the statutory time frames have just come up with Jenny, it might make more sense if we do that first, and then I'll come back to you. Forgive me, Janet—

We'll stay with Jenny for now, and then we'll come back to resourcing, if that's okay; it might make more sense.

You've made clear in your written evidence that the DNS process is not fit for purpose and clarity is crucial. How much further clarity do you require over and above the 52 weeks statutory time frame? Matthew, shall I start with you?

The time frame is critical. So, being clear on how long the process will take would significantly aid the ability to bring these projects forward. The 52-week time frame, we think, would be an improvement on where we see projects under DNS at the moment. There are some provisions in the Bill allowing discretion around that time frame—

We'll come on to that in a minute. So, six months for the inquiry, three months for the report, and three months for the decision—is that good enough, in your view?

We think that's reasonable. What's most important is the clarity on that timescale and the ability of the authorities involved to stick to that timetable.

Okay. Fine. Tom, and then Liz, is there sufficient clarity for your representation?

Yes, I definitely agree. Any clarity on the timescales is really appreciated throughout the process for developers. It helps to plan and resource the various parts of the projects. So, yes, we'd agree.

Okay. And given the current performance of the DNS system, and the constant extending of timescales, one suggestion to us is that the Minister would have to make a statement to the Senedd, were they to wish to extend the deadline for determining an application, and, clearly, would be scrutinised on why it hadn't been done within the 12-month period. Is that something that you'd want to see in this Bill? There are occasionally material changes—

I'm happy to pick that one up first. I think the requirement to make a statement to the Senedd only works if you've got some clear periods before that, in terms of each stage of the process meeting what the expectations are. We really welcome a 12-month overall examination, and I'd suggest that six months and three and three has worked under the Planning Act pretty much to deliver some of the biggest infrastructure projects across the country. The Welsh Government will be aware of, obviously, the Wylfa Newydd application, and the examination on a big project going through in six months; there's no reason why that can't apply here. It is critical, though, that those timescales are set in legislation, and that they aren't put into the Bill with an expectation that they can be extended for no justified reason whatsoever. And again, I'd just say, if there is going to be a statment to the House—the Senedd—I think that would be useful, but it has to be against some other key time frames as well, to put it into context.

Okay. Thank you for that clarity. Is there anything further you want to say on ensuring that there are only exceptional circumstances where you would allow extension?

No. I would support those remarks.

Great. Diolch. Janet, forgive me for that change; back to you on resourcing.

It's all right. So, we've heard from numerous witnesses that the new system set out in the Bill will only function effectively if all parties involved in the process are properly resourced—LPAs, statutory consultees, PEDW. Do you believe that the provisions for cost recovery in the Bill are sufficient to achieve an adequate level of resourcing and, if not, how can they be strengthened?

11:30

So, the provisions at headline level, I think this is another example that we'll probably come to a number of times this morning where the detail of the regulations and the detail of what sits below the Bill will be critical. Until that is fleshed out, it's difficult for a third party to judge whether those requirements are going to strike the right balance between fair and proportionate charging for an application for the applicant, and making sure that those authorities—whether that's local authorities, Natural Resources Wales, or others—are sufficiently resourced. So, what we would call for in scrutiny of the Bill and as the Bill goes forward is for proper consultation and engagement around the charging process, and how that resource will then be used by those authorities to provide the appropriate levels of service, provide value for money and, of course, to meet those timescales. 

Fabulous, thank you. And last week, the National Infrastructure Commission for Wales and Royal Town Planning Institute Cymru told us that developers were willing to pay higher fees if it guaranteed they were going to receive a certain standard of service. Do you support this view?

I think the problem is, though, just because there's money doesn't mean there's resource. I was working on a project where there was a planning performance agreement in place with the local authority to enable them to engage on a really key bit of consultation on alternatives for the project. So, it was a non-statutory, 'Where's this scheme going to go within various parameters?', and the local authority said, 'Very sorry, we haven't got any resource, here's your money back.' That's the situation that there is at the moment. So, you can resource—. Sorry, you can pay, but the resource needs to be there to be able to support those projects coming forward.

So, if we haven't got those skills across Wales, how likely are we to have them when we need them?

Exactly, exactly. There has to be bigger thinking around, actually, how you resource key consultees, how you resource local authorities and how you resource PEDW on a forward planning process. My understanding is that local authorities find it very difficult when they might get a slug of money here to deal with this project, but that doesn't mean that they can bring in resource that actually can be there to support a number of projects. This is an issue across the system and it's something that needs to be tackled because, otherwise, this system is going to be set up with both its arms tied behind its back.

Yes. Again, I agree with the statement that was made. Yes, developers would definitely be willing to pay higher fees for a guaranteed level of service. Obviously, you want to bear in mind this does not distract the consenting bodies from providing a good service overall, not just for the ones paying a bit of an extra price.

Okay. So, again, my question to you is: how are we going to have the level of skills that we need, or planning officers or environmental health, or legal? What should Welsh Government be doing now because they're the ones bringing this Bill forward? What should they be doing now? 

Invest in training for their people, in training people up for these jobs, jobs in local authorities, legal jobs, whatever it is, looking ahead, looking at the scale of projects that are coming forward and saying, 'This is investment and it's long-term investment in building the skills and the abilities of people across our statutory undertakers and our local authorities.' 

Do you believe that that work is taking place now, that that training is being given? 

There was due to be a consultation on the skills required for net zero and, as I understand it, it still hasn't been released, but it's been due to be released for a long time. So, yes, we need to speed up that process and people can feed in to what skills will be required for each net zero, which is many of the skills we're talking about.

Thank you. Janet, we've got 10 minutes left and Heledd wants to—. Are you happy for us to move on? Is that all right? 

Ocê. Diolch yn fawr. Wnawn ni symud ymlaen yn olaf at Heledd Fychan, sydd am fynd â ni drwy archwiliad a phenderfyniadau.

Okay. Thank you. We'll move on finally to Heledd Fychan who will be discussing decisions and examination.

Diolch yn fawr iawn, Gadeirydd, a diolch i'r tystion heddiw. Mae rhai ymatebwyr wedi codi pryder bod y disgresiwn yn y Bil i'r awdurdod archwilio bennu'r dull ar gyfer archwilio cais—hynny ydy, drwy weithdrefn ysgrifenedig, gwrandawiad neu ymchwiliad—fod hynny'n gallu creu ansicrwydd. Mae eraill wedi croesawu'r hyblygrwydd, a hefyd y byddai elfen yr ymchwiliad yn cynnwys croes-holi ac yn fwy gwrthwynebus. Beth yw'ch barn chi am hyn? Dwi ddim yn siŵr pwy fyddai'n hoffi mynd yn gyntaf.

Thank you, Chair, and I thank the witnesses also. Some respondents are concerned that the discretion in the Bill for the examining authority to decide which form the examination of an application will take—written procedure, a hearing or inquiry—that this could create uncertainty. Others have welcomed the flexibility, and also that the inquiry element would include cross-examination and be more adversarial. What are your views on this? I'm not sure who would like to go first.

11:35

In principle, we do welcome the flexibility, the principle that we could have a different approach depending on the nature of the application. What's critical is that the examining authority is working to very, very clear criteria and guidance for the decision on which route a particular project or application takes. So, it's that quality of guidance, clarity for the applicant, and for anyone engaging in the process that is critical. But the idea of flexibility makes sense when there is a range of different sorts of projects that could come under the scope of the Bill and the approach, which would not all be appropriate for exactly the same process every time.

I'll just add that flexibility is fine, we just need to ensure that it doesn't affect the overall determination period, that regardless of which system is used, projects are still examined within, whether it's six months—hopefully it's six months—that six-month period.

Diolch. Unrhyw beth i'w ychwanegu, Tom? Na, ocê. Diolch yn fawr iawn.

Cwestiwn arall, felly. Mi gawson ni adborth cymysg ar y darpariaethau yn y Bil a fyddai'n caniatáu i'r awdurdod archwilio neu Weinidogion Cymru wneud y penderfyniad. Mi oedd rhai eisiau gweld Gweinidogion Cymru yn gwneud penderfyniadau ar bob cais oherwydd atebolrwydd gwleidyddol, ac mi oedd rhai eraill yn teimlo bod galluogi'r awdurdod archwilio i benderfynu yn golygu gallu penderfynu ar geisiadau llai cymhleth yn gynt. Byddwn i'n hoffi cael barn y tystion, os gwelwch yn dda, ynglŷn â'r darpariaethau atebolrwydd gwneud penderfyniadau sydd yn y Bil.

Thank you. Is there anything else you'd like to add, Tom? No, okay. Thank you very much.

Another question, then. We received mixed feedback on the provisions in the Bill that would allow for either the examining authority or the Welsh Ministers to make the decision. Some wanted the Welsh Ministers to be the decision maker on every application because of political accountability, and others felt that enabling the examining authority to decide would mean less complex applications could be decided sooner. I'd like to hear the views of the witnesses, please, on the decision making accountability provisions in the Bill. 

Pwy fyddai eisiau mynd yn gyntaf ar hyn? 

Who would like to go first on that?

Who would like to go first on that? Matt.

Sure. We don't have a strong view. In principle, I think, as I said in my previous answer, the flexibility to approach each application on its own merits makes sense, and then probably leads you to having flexibility for the examining authority to take some decisions where that's appropriate. 

Great. Well, we've come to the end of our allotted time. Unless there was anything urgent that any of the witnesses wanted to add, thank you very much for the evidence that you've given. 

Bydd transcript o'r hyn sydd wedi cael ei ddweud yn cael ei ddanfon atoch chi i chi wirio ei fod yn gofnod teg o'r hyn sydd wedi cael ei ddweud. Ond diolch eto. Efallai y bydd rhai pethau y byddwn ni eisiau dilyn lan gyda chi mewn ysgrifen, ond diolch yn fawr iawn am eich tystiolaeth. 

A transcript of what has been said will be sent to you for you to check that it is an accurate reflection of what has been said. But thanks again. There may be some things we'll want to follow up with you in writing, but thank you very much for your evidence this morning. 

Thank you so much for your evidence this morning. 

Members, we'll be taking a short break. We'll be going live again at 11:50. Diolch yn fawr.

Gohiriwyd y cyfarfod rhwng 11:38 ac 11:51.

The meeting adjourned between 11:38 and 11:51.

11:50
4. Bil Seilwaith (Cymru) - Sesiwn dystiolaeth gyda datblygwyr y sector trafnidiaeth
4. Infrastructure (Wales) Bill - Evidence session with Transport sector developers

Croeso nôl. Dŷn ni'n symud yn syth at ein trydydd sesiwn dystiolaeth y bore yma, ac fe wnaf i ofyn i'n tystion i gyflwyno'u hunain ar gyfer y record. Fe wnaf i fynd at Geoff yn gyntaf.

Welcome back. We're going to move straight to our third evidence session this morning, and I'm going to ask our witnesses to introduce themselves for the Record. I'll go to Geoff first of all. 

Bore da. Geoff Ogden. I'm chief transport planning and development officer at Transport for Wales.

I'm Sonny Robinson. I'm a senior town planner at Network Rail, managing consents—ranging from planning, heritage and environmental consents—for Wales and borders. 

Thank you, both, very much. Os ydy hi'n iawn gyda chi—. If it's okay with you, we'll go straight into questions. Firstly, could you set out, please, briefly, what your involvement—or the involvement of your organisations—has been in how this Bill has been developed, and if you were contented with that level of engagement from the Welsh Government on it? Geoff, if I go to you first.

So, we are a relatively young organisation. We've evolved quite a lot over the last few years. We didn't participate in the original consultation. We had other things on our minds at the time, back in 2018, but more recently I've attended a session that was facilitated by the National Infrastructure Commission for Wales and the Royal Town Planning Institute, and there was good engagement through that—Welsh Government were there. I think, through that, we've identified some opportunities for some further engagement, which we'd like to pick up with, for example, Planning and Environment Decisions Wales and others that were around the table. 

Yes, I'd probably echo some of those comments, in that we've been engaged through the formal consultations with Welsh Government. I think it's been sufficient for us to understand the legislation and the Bill coming forward, and for Welsh Government to understand some of the concerns and comments that we have on the Bill. Likewise, I attended the infrastructure commission session, which I think was useful, and it was good to see representatives of Welsh Government there directly explaining some of the feedback that we provided.

Thank you so much. And, further to that, we've received evidence from a number of different groups that there's a need for, perhaps, greater clarity on how the transition is going to work from current arrangements to the new processes. Would you agree that more clarity is needed? If so, how could that be achieved? Or, would you disagree? I'll go to you first, Sonny, for a change. 

From our perspective, we've looked at this, particularly from a Network Rail perspective, and we don't actually have any schemes progressing through consent at the moment that would trigger an infrastructure consent. So, while transition arrangements aren't fundamental from our perspective immediately, because it won't impact any of our immediate delivery of schemes, we can see that, in terms of the wider industry, there would be a benefit to understanding the implications of the introduction of this infrastructure consent, and how it would impact on current pending applications.

Yes. So, I think the transition period is important. Clearly, it might be very difficult to outline that now. I guess there are a couple of things that play into that for us: the length of time it takes to develop the sort of schemes we're looking at; and understanding how that would play out in the different regimes that might be open for consenting in the future. And what we'd see through this Bill is that, actually, there's a real opportunity to make some cost savings and some time savings whilst having effective public consultation and engagement. Because, for example, through the Transport and Works Act 1992, I think the average sort of time—. We've not actually done any—. Sorry, we've done one Transport and Works Act order, which was about the transfer of the core Valleys lines into Welsh Government and ourselves back in 2020, but in terms of scheme development elsewhere, you can see that, actually, there would be opportunities for us to shorten—if we could achieve a 52-week process—to shorten what we currently do.

The other thing that we see as an opportunity for us is that, at the moment, under the Transport and Works Act, we cannot be a promoter in our own right. And, actually, if we were able to resolve that through this process too, then there would be much more—. Sorry, I should say, we understand that we would be able to be a developer under the proposals of the Infrastructure  (Wales) Bill. So, actually, if we were able to resolve that, that, again, could have some real opportunity for us, because, at the moment, we have to find a partner to work with—it could be a local authority, it could be our infrastructure organisation—and, clearly, they need to go through due diligence alongside what we're doing, to work with us and be happy and content with what is taking place. So, there is an opportunity there, perhaps, through this Bill, to roll something into that that would help us, then, take ownership in our own right.

11:55

Yes. Thank you very much. We will move on.

Mi wnawn ni symud ymlaen at Joyce Watson.

We'll move on now to Joyce Watson.

We're going to talk about status and hierarchy of planning policies. We've been told by the Minister that she isn't aware of any policy gaps, and, currently, no infrastructure policy statements are planned. However, in Transport for Wales's paper, you say there would have to be significant effort from the Welsh Government to ensure that:

'published policy documents for infrastructure projects remain relevant and consistent with other policy set by the Welsh Government.'

Do you think, therefore, with that statement, that that is the case, or have you identified gaps you want to talk about?

I think that is the case at the moment. Actually, I think, in terms of transport, it's a relatively mature sector compared to some of the other challenges and some of the other evidence that perhaps you're hearing through this evidence session. There's 'Future Wales', there's the Wales transport strategy, there's the national transport delivery plan. We will be working hard with local authorities around regional transport plans. So, actually, the golden thread between an actual practical intervention and right the way up to what's trying to be achieved across Wales, I think, is quite strong. But, that needs to be maintained, and it needs to be relevant. So, at the moment, I think it is; there's no reason why it can't be, but if there are shifts in policy anywhere, then it needs to be reflected through those documents.

Again, I think we're in a similar position, in that I think the rail industry policy and guidance, both in planning, is well developed. 'Future Wales', obviously, sets out strategic ambitions for Wales, but then we have more technical documents, like 'Planning Policy Wales', things along those lines. So, I think—. And feedback from infrastructure commission events and things along those lines. I think other industries don't necessarily feel that there is as much policy guidance giving certainty to development, should it come forward under an infrastructure consent, and they may be requesting additional policy areas to be looked at.

I think the issue around some of the new policy supporting infrastructure consent is aligning it with existing national policy. Obviously, that's feeding down to a local level and ensuring that that doesn't, by the creation of additional policy, open avenues for challenge down the line.

I was just going to say that another, perhaps, challenge for us going forward is much more integration of different types of schemes—so, transport and energy schemes, et cetera. So, clearly, where that's happening, we need to make sure that the policy statements match in terms of the strength of them, so that, actually, we're not causing a risk to one element of the overall programme or project because of another one. There's an opportunity there for us to make sure that happens.

12:00

One area that might be of interest to both of you, I would imagine, is the cross-border issue. Lots of stakeholders have highlighted the potential impact on developers with cross-border projects, raising the question of how regimes on each side of the border will interact. Do you think that that's an issue, and do you have any views on how that could be addressed?

I was going to ask Sonny to do a bit more on this. I should explain that, probably, in terms of Transport for Wales's main interest, from a development—. Sorry, not the main interest. Its main responsibility as an infrastructure owner is on the core Valley lines. That's where we would be looking at extensions, et cetera, where we would be a promoter in our own right. Elsewhere, we would be working very closely with Network Rail under their role as a promoter. But I do see that there's a challenge in terms of the consistency of approach—between Wales's approach and England's approach, to be absolutely clear. But I might rely on Sonny to say a bit more, because I'm sure they have got a bit more experience so far.

Yes, sure. We have identified this as a risk, going forward. I think that, obviously, there are quite strict legislative requirements in which Wales is working, which effectively put relatively hard borders in place in terms of consenting. So, we know that there's not going to be an easy fix to this issue. What is key is that the supplementary policy and regulation identifies the scenarios whereby there could be a cross-border implication, provides some guidance in terms of interaction, and some sort of almost agreed approach between Wales and England in terms of determining this.

From what I understand, the thresholds for infrastructure consent replicate, from a rail perspective, the SIP proposals in England. The main line—unfortunately, there isn't—. Wales and borders effectively operates in fairly large areas of England. So, large-scale north to south existing railway infrastructure improvements that could trigger an infrastructure consent could well break down the size of that scheme to a number of portions, a number of areas, possibly resulting in a number of infrastructure consents for a single scheme where there are cross-border issues.

Yes. As the Member for Cardiff Central, I have been waiting for many years to try and get some progress on streamlining the four lines that run between Cardiff towards, obviously, the main line towards London, in order to be able to intensely use some of the lines to function around the south Wales metro. How would this Bill enable us to make some progress here, or is there sufficient in this to tackle these cross-border issues, or are there some other things that need to happen?

It's quite a complex field in terms of when Network Rail, especially delivering improvements to existing railways, would actually use an infrastructure consent as their mechanism of approval. So, the infrastructure consent thresholds effectively say that if the works are considered permitted development, effectively they don't meet that infrastructure consent threshold. 

On schemes where we're reinforcing or enhancing our network on existing railway land, more often than not, those are delivered under what we would refer to as Part 11 in Wales or Part 18 in England of the general permitted development Act. Effectively, what that's relying on is the original authorising Act of Parliament that delivered these railways.

If we are looking at a scenario where we are enhancing capacity, additional lines, as long as we are operating within the existing areas of that original authorising Act, it might not actually trigger the infrastructure consent process, because there are significant permitted development rights associated with such works, which would likely, under these scenarios, be less onerous than an infrastructure consent. 

It might be that we promote them if there are significant land issues—compulsory purchase issues, things along those lines. But on a scheme such as doubling lines or enhancement capacity, it may well be that, even though it exceeds the threshold of 2 km, it doesn't meet the trigger for requiring consent in terms of it being permitted development rights.

12:05

Okay. So, nothing in this Bill will speed up this process. There are other issues, which we're not dealing with today.

We could share progress with you offline, if that would help.

Diolch. The Minister has told us that the new process will make it easier for the public to engage with the system because a number of consents will be rolled into one. Do you agree with this statement?

I do. On the face of it, it should do that, and I guess, through the work you're doing at the moment, if you try and understand the labyrinth of planning at the moment, you can see why it would be difficult for communities and stakeholder groups to engage with it, despite the effort that goes into making it as clear as possible. So, I think anything that can join things up, make things streamlined for developers, make things more understandable for communities and stakeholders—absolutely. But the devil will be in the detail.

A lot of these applications, large infrastructure—. You start to read—. You know, we're supposed to know how to scrutinise law and you start reading and you just think, 'How on earth will my residents understand any of this, even if they're privy to it?' But it's the fact that some of that isn't—. You know, that's too detailed. But, I do believe that companies and developers on large infrastructure projects have a responsibility and a duty to—. Who would want to go into a community with a massive infrastructure project and not want to engage with them? But, sometimes, we are the only conduit and it's too much for an elected Member.

I think, in our sector, things like the Welsh transport appraisal guidance process makes very clear the expectation on community engagement and supports it hugely. So, actually, it's well planned out through the whole process. But yes, I think joining it up or simplifying it would help.