Cynulliad Cenedlaethol Cymru

We've got apologies from Adam Price. As a reminder, the meeting is broadcast live on Senedd.tv, and the record of proceedings will be published as usual. Please can Members ensure that all mobile devices are switched to silent mode? Senedd Cymru operates through the medium of both the Welsh and English languages, and interpretation is available.

That takes us on to item 2, the Building Safety (Wales) Bill evidence session with the Cabinet Secretary for Housing and Local Government. If you'd like to introduce yourself and either you or your colleagues can introduce themselves. 

Diolch, Cadeirydd. Jayne Bryant, Cabinet Secretary for Housing and Local Government, and I'll ask my officials to introduce themselves.

Steve Pomeroy, head of fire services in the Welsh Government.

Jo Newth, legal services.

Tania Nicholson, deputy director for housing quality and senior responsible officer for this Bill.

Kim Phelps, head of building safety occupation phase policy.

Diolch yn fawr. I will move straight on to questions. Are you satisfied that the Bill is within the legislative competence of the Senedd?

Yes, I'm confident that the Bill is within the legislative competence of this Senedd.

The explanatory memorandum notes that only the legal issues in relation to human rights have been considered. What consideration have you given to human rights issues when preparing the Bill? What were the outcomes of any assessments undertaken in relation to the human rights impact of the Bill? Have you taken any steps to limit any interference in human rights by the Bill?

Diolch, Cadeirydd. As with all Senedd Bills, the Welsh Government has carried out a full human rights assessment before introduction, but perhaps I can just touch on a few aspects. So, to support the development of the Bill, we did undertake a number of impact assessments, and, in a number of cases, we considered the impact on the convention rights would be positive. But, where there was a negative impact identified, we did consider the mitigations and included appropriate measures within the Bill. So, for example, although the Bill does confer duties on residents, I do consider those to be limited and specific and proportionate. So, the full suite of impact assessments has been published on the website as well.

Diolch yn fawr. Sam.

Diolch, Gadeirydd. Good afternoon, Cabinet Secretary. Apologies for not being able to join you in person. Staying with this theme of human rights, are you satisfied that the sections allowing rights of entry to property are compliant with human rights, and, if so, what steps have you taken within the Bill to limit interference?

Diolch, Sam. Thank you for that. As I've said, I'm already very confident that the Bill is compatible with convention rights. There are circumstances, as you say, where it may be necessary for an accountable person, or for an enforcing authority, to gain access to a residential unit in order to enable and ensure compliance with the duties under the Bill. The Bill does set out strict processes for obtaining access, and perhaps I could give the committee an example. So, one of those examples is that an accountable person can only request access for one of the building safety purposes prescribed in the Bill in section 53(2), and the request for access must comply with certain requirements. So, these requirements are set out in section 53(3), and they include that the request must be made in writing and must set out the reason why access is needed. So, then, if a resident does not voluntarily give access, the accountable person would have to apply to the residential property tribunal for an access order. The tribunal may make an order if it is satisfied that it is necessary to do so, and the tribunal must also specify the date on which, or period within which, entry is to be made. So, hopefully, that does reassure the committee on that aspect of the rights of entry.

Thank you for that, Cabinet Secretary. With section 38(7) of the Bill making provision about the admissibility of information submitted to a building safety authority or a fire safety authority in accordance with the duty of subsection (1), it provides that, subject to specified exceptions, such information is not admissible in criminal proceedings. Can you confirm the rationale for including subsection (7) in the Bill, and are you satisfied that the provision is within the legislative competence of the Senedd?

Diolch, Sam. So, the rationale behind this provision is to ensure that building safety information is given freely and openly to the building safety authority and fire safety authority and to ensure that all building safety concerns have been reported. The concern would be that, without subsection (7), accountable persons and others could be discouraged from coming forward with vital building safety information, which could be paramount to the safety of people in and around the building.

The independent review on building safety, the Hackitt review, did recommend that it should be mandatory for key duty holders to report particularly dangerous safety-related events, so section 38(7) contributes to the fulfilment of this recommendation. I am satisfied that all the provisions in the Bill, including section 38(7) are within the legislative competence of the Senedd. I don't know if Jo wants to say a little bit more about that.

Certainly. When we were considering this provision, we considered in particular the reservations in paragraph 8(1)(c) of Schedule 7A to the Government of Wales Act 2006 and paragraph 1 of Schedule 7B, and as the Cabinet Secretary said, we're satisfied that the provisions are within the competence of the Senedd.

Thank you, Jo.

Alun.

Thank you. I'm grateful to you for that, Cabinet Secretary. Could I put on public record that I was actually a housing Minister at some point between 2017 and 2018, which may touch on some of the issues that we're discussing this afternoon? It's that development of policy and the structure of the statute book that I'm interested in. We've had, I think it's fair to say, a confused approach from Welsh Government during this Senedd on housing legislation. We've had a number of LCMs where Ministers have said that legislation isn't possible to go through this place—the committee doesn't accept that argument, of course—and, as such, we've been amending legislation in London. We've had legislation going through Westminster rather than this place, and we've had amendments to legislation that has already been passed in this place. So, it's been a very confused legislative programme in terms of housing in this Senedd, and not one where I think Government has shown itself to be in glory. So, how do you now anticipate and expect this to sit within the current statute book, and for it to integrate with other pieces of legislation the Welsh Government has taken through Westminster and this place?

Thank you, Alun. It's always good to see a recovering housing Minister—

Recovering, rather than recovered.

—and to know that there is life after that as well. [Laughter.]

I appreciate your question, and I know that this is something that you've raised before, because, as you know, I'm taking two Bills through at the moment. I know those are concerns that you have raised in the past, and that the committee shares your concerns as well.

I think, in terms of—. We've talked before around a consolidation Bill, and that is something that has been raised. I think in terms of this particular Bill within the existing legislative framework, you'll know that we are also responding to the terrible tragedy of the Grenfell Tower. I know that there have been subsequent reviews as well around that and how we respond to that. This is part of a package of things that we are doing to respond to this. This Bill will deal with the occupation phase of a building, which I think is going to be really important, but there are other aspects, obviously, that we have done with that. The current regulatory system is not fit for purpose in terms of multi-occupied residential buildings, so that is something that we have to deal with and have to take forward. Again, as I said, this is part of a suite of those measures that we've already brought forward. I think we shouldn't lose the fact that this is in response to those reports that we have had across the UK.

I understand that. Grenfell, of course, happened before I actually was a housing Minister, so it's taken some time, which is my second question, of course: how come it's taken so long? Grenfell happened in 2017, didn't it? So, it was a year after the previous Senedd was elected. So, we've had the best parts of two Senedds now, with the Welsh Government responding to this before this Bill comes in front of us. So, it hasn't been timely, and I think the committee would like an explanation as to why it's taken so long. But we also need an answer to the previous question about how it sits. We understand what the Bill is, and we understand what it seeks to do. We know that. The question was how it sits within the wider statute book, which, I believe, is somewhat confused at the moment in terms of housing. 

So, just to make sure I'm covering that first question as well, the housing, health and safety rating system and the Regulatory Reform (Fire Safety) Order 2005 currently apply. The Hackitt review recommended that there should be greater clarity about who is responsible for managing the safety of buildings and occupations. That's why we're putting these measures in place: to identify those duty holders who should be—. And that places a proportionate and relevant set of duties on them to ensure that the risks are managed appropriately in those buildings.

So, the regime established by the Bill will largely replace the fire safety Order for multi-occupied residential buildings. Its intention is to use guidance to set out how the enforcement powers under the housing, health and safety rating system, and under the Bill, can be used to provide clarity for accountable persons and enforcing authorities. We will obviously work with fire and rescue authorities on the development of that guidance and ensure clarity about the operation of the new regime—how that will be. And perhaps I can ask officials to come in on that.

But just to follow up on your last question around why it's taken so long, I do understand that there has been a long—. We've all seen that this Bill has been a long time in development. As I said, there's been a suite of things that we have been doing, but we have been working throughout this time with stakeholders, with organisations, with individuals who will be impacted. We have consulted widely on this. We have had engagements since Grenfell and all those reports. We have been working really hard to deliver that. But perhaps I can ask officials to come back on that first bit on where it sits within the regulatory framework in particular. I know that it touches a number of people here.

Thanks, Cabinet Secretary. So, I guess, just to outline what the Cabinet Secretary has already said in terms of that interaction with the wider legislative framework, we work very closely with stakeholders to ensure that the duties that the Bill imposes do not overly overlap or duplicate any duties under existing legislation. And we work very, very hard to try and ensure that the Bill complements and works alongside other existing legislation. And one example of that is the duties in relation to houses in multiple occupation, where we've sought direct feedback from stakeholders in terms of the proportionality of their duties. As a consequence, we're introducing that HMOs will only be subject to the fire safety duties and will not be subject to the broader duties in the Bill, and that's in direct response to stakeholders' feedback.

I've no doubt that you're working very well and closely with stakeholders, but I'm afraid that doesn't answer either of the questions. First of all, why it's taken so long, and, secondly, how it sits within the statutory framework, which, I believe, and I think the committee agrees, is somewhat confused. I don't know how much further we're going to get this afternoon, but it would be useful, first of all, for the committee to fully understand—. This is not the first Bill that's come in front of this committee that has taken a considerable amount of time to develop. And we've had similar answers from other Cabinet Secretaries and Ministers. And I'm not sure it's good enough, if I'm quite honest with you. We really should be able to legislate more quickly in this place, particularly when this department has been taking a lot of legislation from Westminster—too much. So, I think we've got a problem here in this department, both in terms of the structure of legislation and the speed with which legislation is brought through, and I think that's something the committee would do well to comment upon. And then, secondly, we've got a confused statute book. Nobody's answered that, really. I understand what you're saying about working with stakeholders, and I understand what you say about trying to work with other pieces of legislation. That's the basic work of a legislator. There's nothing surprising about that. The point is different, because the point is that too much law sits in too many places, and, first of all, for a Labour Government committed to social justice, it doesn't enable people to easily understand their rights and the law. And secondly, for practitioners, it means that it's very difficult for people to understand where the law sits in any particular place. That's why previous Counsel Generals have spoken about the need to have clarity in law, and that's not what is being delivered by this department in this Senedd, and I think that's something the department needs to reflect upon.

Thanks, Alun. I hear what you're saying and I know that's consistent, as I said, with what you've said on the committee before as well. Certainly, we'll take the time to perhaps write to you with some more clarity, perhaps, on some of this, if we can, following today's meeting. But I very much hear what you're saying, and our aim is always to do the best for the people of Wales—

I've no doubt about that. 

—and for people to understand as well, which is an important aspect, as you say, where responsibilities sit and what the law actually is. That has to be there, so I do take that point, but if we can write to you just following some of that exchange, perhaps that would be helpful.

And the committee may well write to you as well, Cabinet Secretary.

Of course. 

I don't think this is bad people doing bad things, but I do think there's a systemic problem in your department, and I do think this is something that should have been addressed by Government beforehand, and it might be useful for us as a committee to consider that, both in relation to this Bill and more in general as we look back over this Senedd.

The team do a very good job of trying to make sure we're covering off—you know, doing the best that we can. But like I say, I do hear what you're saying, and very much will accept that letter. Steve.

What Mr Davies just said has given me pause for thought about the law being in too many places. One of the problems that we have in my part of this is that the fire safety Order is not housing law at all. It was designed for workplaces. It presumes the existence of an employer and an employee, and it is shot through with provisions that are eminently sensible in a factory or an office, but make no sense at all in a tower block. So, one of the things this Bill does is say, ‘Enough with that. We will create a regime in the Bill for residential properties that is more suited to the sorts of risks you find in residential properties, and presumes the existence of a landlord and tenant or owner and leaseholder rather than employer and employee.’ I think that's a step on. I think it is easier for landlords to understand something that is in this legislation rather than sitting over here in the non-devolved health and safety at work statute book. So, maybe that is an example of the sort of thing you are encouraging us to do. I thought so.

I recognise that. I'm beginning to remember some of the conversations we had a decade ago, and I don't disagree with you. I think it does good things in this sense, but it should have been done before, and it shouldn't take this long to develop, and it shouldn't take this long to come in front of the Senedd, and that, I think, is the point—

That I don't have a really good answer to, I'm sorry.

That's the point we're trying to make here. But in terms of where we are today, you’ve made some changes since the White Paper, and it would be useful for us to understand what those changes are in your view, and why you made those changes.

Yes, thank you. In terms of the divergence from the White Paper, we have been, and officials have been, as you’d imagine, engaging with all those relevant bodies to shape the content and just make sure that we have a successful implementation of that new regime. There’ve been a number of workshops with local authorities and fire and rescue authorities that have been held over the last two years; others have been engaged through regular discussions, and we’ve had webinars. The Bill broadly follows the proposals that are set out in the White Paper, but we have made some key refinements to policy in response to the feedback that we’ve had through some of those, which I think is really important, to have had that, and to listen.

So, those have included having three categories for buildings rather than two, and extending the duty to assess structural safety risks to cover category 2 buildings as well as category 1 buildings. So, feedback there, together with the costing assessments, which were informed by Deloitte economics, helped us to refine our thinking on those matters. So, that's the main divergence. I don't know if anybody wants to say anything about the feedback sessions that we did and the work with stakeholders.

I think, in terms of this committee, we're interested more in the structure of the legislation rather than the policy area, so I am certainly content with that response. Can I ask you, Minister, and I won't go any further on this this afternoon, but it would be useful if you could write to the committee outlining your view of where the statute book is in terms of housing law? 

Okay. Yes.

And if you share the committee's view that it's not an overly happy place, then perhaps you might outline how you would expect it—. I'm trying to frame my words because I know that we've got dissolution in six months' time, so asking you to commit to some sort of consolidation Bill isn't appropriate. But it might be useful for you to ask officials to start to look at the body of legislation and how that could be rationalised and streamlined in some way to make it more accessible to the public and to practitioners. I think that would be a useful exercise, and it might be useful if you could then write back to the committee before we report on this Bill, to enable us to take that into account in our report.

That's fine. We will do that. Yes, we can commit to that. 

Diolch, Alun. I'll just say this for the record: I believe housing is one of the most important things that we do and it should have a higher position in the political debate than it does at the moment.

I'd agree with you there, Cadeirydd, and I think we all would. 

There's an awful lot of things that need to be done. They're not in this Bill, and they'll probably come into a Bill sometime in the future from whoever runs the next Senedd, but there are a lot of things that are still left to be done. And just a personal view: I think it's unfortunate that we haven't had a full look at housing at the level that perhaps we have had at health, but I'll stop there.

How would you describe the balance of provisions on the face of the Bill and the further details to be left for secondary legislation?

Diolch, Cadeirydd, and I'd just say that I do very much agree with what you've said in your opening to the question, but also just to highlight again how much of a complex Bill this is. So, we very much understand that, and I'm sure the committee do understand that as well. There are a significant number of delegated powers within the Bill. I am satisfied an appropriate and proportionate balance has been struck between what's on the face of the Bill and what will be set out in those regulations. Delegated powers are only included where the nature of those provisions will be too detailed or too technical to be on the face of the Bill, or where they may be needed to enable the regime to adapt or take into account unforeseen scenarios.

We always try and deal with—

I don't know if Steve might have an example of—

I'll let the Chair come back in first.

Oh, sorry.

I think that we have lots of scenarios and then things happen. Something that isn't in this Bill is that I don't think anybody expected the explosion of Airbnb taking over in ordinary areas quite as massively as it has done in the last few years. So, that's an unexpected item that no housing Minister ever made any regulations for. I don't believe you're dealing with it here either, are you? 

I will say that the built environment is complex and constantly changing. Even if you look out of the window behind you, you can see how the skyline here has changed, and that's because of those advances in technology, building design, construction, products and techniques. All of it is changing and I think an effective safety regime needs to keep pace with that. But I don't know if Steve might give you an example.

I'll give you one example and that's about lithium-ion batteries, which are taking over the world even more than Airbnb is. Five years ago, if we were making regulations under this Bill that didn't exist five years ago, we probably wouldn't be concerned with the risks of lithium-ion batteries in blocks of flats, because they're confined to small devices that people have on their person. Yes, they're a fire risk, but they're a fire risk within people's homes. What we've seen since then are e-bikes and e-scooters using more powerful, larger batteries that people can and do—although they shouldn't—charge in the corridor, in the hallway, and so on. That is a very serious risk of fire. If a lithium-ion battery enters a condition called thermal runaway, you get a fire that is very, very hard to fight. 

I don't want to pre-empt what a future Government might want to put in regulations, but my advice would be, you need to say something about lithium-ion batteries. We didn't know about it five years ago. I don't know what, in five years' time, we might have to regulate for, or maybe battery technology will have moved on and we won't need to worry about batteries anymore. So, that's why we need that sort of flexibility, because risk is changing.

My expectation is we're due for the next big jump in battery technology; we've waited a long time for it. I think that there's a lot of experimental work being done, especially in Japan and the United States of America at the moment. If one of these comes off, then lithium-ion batteries become overtaken by events. But that's not really for housing.

There's no requirement on the face of the Bill to consult or engage with residents when developing secondary legislation or guidance. Don't you think there should be?

So, many of the secondary legislation-making powers and the guidance-making powers included in the Bill are accompanied by a duty to consult such other persons as Welsh Ministers consider appropriate. So, I appreciate that residents are not specifically a consultation group, but there will be many instances where they would have legitimate interest in those regulations or guidance being developed. So, I think Welsh Ministers would be failing to comply with their duty if they did not feel it appropriate to consult residents in those cases. Just to be clear that we have consulted with residents at every stage through the development of the Bill so far, and I can assure you that this will absolutely continue on the regulations and guidance made under the Bill. Also, just to say that most Welsh Government consultations are generally open to the public, so anyone can respond to them. I'm also keen to see how we can continue to engage with residents and how that engagement takes place. So, I'm open to hearing the committee's views on that as well.

Thank you very much. There are several powers surrounding the definition and categorisation of buildings that fundamentally impact the duties on certain persons. Some of the powers are also quite wide, for example, section 5(5) regulations to make further provision for the purposes of the meaning of residential unit. Although these regulations are subject to the approval procedure, given their potential impact, have you considered whether they should be subject to an enhanced approval procedure requiring extended periods of consultation, including specific statutory consultees?

So, as indicated in the statement of policy intent, we don't have existing plans to use this power. It has been included so that, if evidence does emerge—for example, particularly unusual building designs—regulation can be made to ensure that there's clarity for those duty holders as to how the regulations apply to their premises. To make regulations, Ministers would have to come in front of the Senedd to make their case, with the subsequent debate and vote. I think that is appropriate and that an enhanced procedure is not necessary for a power such as this. But I'm keen that any—. We do not want to see it result in any delay or uncertainty for residents and others, but, again, happy to hear the committee's views.

Thank you. My constituents who live in high-rise buildings will be shouting at their screens by now because they feel that they've not been listened to very much. I know that's got nothing to do with the Bill, but how can you assure us that people will be listened to, because they really feel that they have had great difficulty, and the people who built the building have been less than helpful?

Diolch, Cadeirydd. I think, for me, and I know that, as I say, in the development of the Bill, we have done and officials have been listening to residents. I do think that is really important. I know the aspect that you're talking about isn't covered in this Bill because we are talking about the occupation phase of the building. We have dealt with some of the other aspects of people in some of the buildings that you're discussing in other places as well, and we do engage regularly with those residents as well, and leaseholders. So, I am listening to residents. I am keen that we hear, as I say, from committee, and, as I said, if there's anything more the committee would like to recommend in this space, I'm keen to hear.

Okay. And finally from me at this stage, there's no definition of the term 'storey', and that's left to regulations. I have buildings that have got basements, ground floors and three floors above the ground floor. How many storeys would you say they had?

Right. So, 'storey' is for the design and construction phase in regulation; we plan to do the same for the occupation phase. We're not tending to do anything novel with the definition of 'storey'. There is a benefit in aligning definitions between the design and the construction phase and the occupation phase, and that's designed to assist with the alignment. So, the detail in the regulation as to what constitutes a storey is likely to only be relevant in niche examples, for example, like a mezzanine, and to include such detail on the face of the Bill just risks overcomplicating the Bill, and I think that'll be a rare example. So, in terms of the storey, I think there is—. As I say, it can be quite complex in terms of that mezzanine as well. I don't know, Jo, if you want to add anything to that, or anybody else.

Yes, I'm happy to on that one. So, yes, we've already got regulations for the design and construction phase that define 'mezzanine' by reference to how much of the internal floor area is covered by that floor. So, it's just about consistency across the statute book, then, the design and construction phase and occupation phase. That's why that definition is for regulations proposed.

I know I'm not going to get an answer about how many storeys there are when there's a basement, a ground floor and three floors above—I'll just leave that as a question. But why isn't it on the face of the Bill what a 'storey' is?

Do you want to take that one?

Yes. If, for example, the definition were to change for the design and construction phase, then we'd need to consider changing it for the occupation phase, so that there's a smooth movement of, for example, a category 1 building, which is a higher risk building in the design and construction phase, across to being a category 1 building in the occupation phase. So, we'd want to at least have the possibility of regulations in the occupation phase reflecting those in the design and construction phase.

Thank you for that. I remain unconvinced, but thank you. Sam Kurtz.

Diolch, Cadeirydd. The next set of questions are quite a mouthful, Cabinet Secretary, so I'll introduce the set of questions and then I'll come back to them one by one, with your consent, if that's okay.

Yes.

Sections 14 and 16 give very broad powers to Welsh Ministers to make further provision for the purposes of sections 8 to 13, and to amend sections 2 to 14 and Schedule 1 respectively. This includes the ability to change fundamental definitions, including those of 'buildings', the categories of buildings, 'accountable person' and 'principal accountable person'. Could I firstly ask why is this approach necessary, and would this allow a future Government to rewrite sections 2 to 14 of the Bill? 

Thank you, Sam; I appreciate that. So, the built environment, as I said, is a really complex space. It's constantly changing, as I've said. That's because of—we've talked about the advance in technology and building design, et cetera. So, it's really important that the regime can respond to the changes sensibly, without waiting for an appropriate Bill opportunity to arise. So, balancing detail on the face of the Bill with the need to ensure that the regime can respond to future need has been very challenging, as you can imagine. So, we regard this as a very sensible approach and very appropriate for this particular Bill.

You mentioned in particular sections 2 to 14. So, again, the power in section 16 is proposed to enable amendments to be made to the key term section, and that power is not about changing the duties under the Bill. It is a broad power, but we think it's an important one to ensure that if issues arise again, we can respond as quickly as possible. So, just to say that we don't have any current plans to use this power, but it's really an important power to ensure we're able to keep buildings as safe as possible in the long term.

So, just to come back, Cabinet Secretary, quickly, in terms of allowing future Governments to rewrite sections 2-14 of the Bill, are you saying that that is doable?

So, again, the way in which buildings are owned and managed, particularly at the smaller end of the spectrum, does vary, as I say, considerably, but we want to ensure that if issues arise during the implementation or in the future, we can react as quickly as possible within that. A future Government could use this power, subject to the Senedd's approval, to amend the key definitions, and the purpose of those definitions is to ensure that the right buildings and the right people are identified. Clearly, any amendments would have to have that in mind as to ensure that the duties under the Bill are placed on the most appropriate people. So, again, hopefully that outlines where we are, but, obviously, we'll hear from the committee on your views on that.

Thank you. You mentioned there that it must go through the Senedd. So, given that the impact of these is on citizens and wider legal duties on persons not currently considered, the enhanced affirmative procedure, was that considered, or is it just a simple majority in the Senedd to change?

Jo, or—.

I think it's an approval procedure currently, Jo, isn't it?

Yes.

It's an approval procedure. But, as the Cabinet Secretary said, we're happy to hear the committee's views on that and consider it.

Okay. I'm grateful for that. I would consider that, given that this could have wholesale changes on the wider legal duties, I think, potentially, an enhanced affirmative procedure within the Senedd could allow more of a cross-party basis on this, given the impact of housing, as the Chairman rightly alluded to in his opening remarks.

In terms of the scope of the powers, at any point did you consider restricting them by stating what regulations may not do as well as what they may do?

Thank you, Sam. So, again, the power in section, for example, 14(1), is primarily intended to ensure that regulations can be made for the most unusual ownership models for the buildings of more unusual design. So, again, we're looking to respond. So, those regulations would not generally be able to override what's necessary in sections 8-13, but they're providing more unusual scenarios by supplementing what's already on the face of the Bill. Again, we're proposing that regulations would be subject to the approval procedure, which would give this committee, obviously, and the Senedd the opportunity to consider the appropriateness of the use of the power prior to any regulations being made. But a list of matters that regulations could not cover, we think, would be very long and wouldn't really serve a useful purpose. So, the power is already limited only to matters covered by sections 8-13.

Okay. Thank you. I'm looking for an example from you here, Cabinet Secretary, if that's okay. In the explanatory material accompanying the Bill, there's no reference to vehicles or vessels, but section 16(2) provides that the Welsh Ministers may use regulations to amend the meaning of 'building' in the Bill to include vehicles, vessels or other movable objects. Can you give me an example of where you see that being used?

Okay. Yes. Thank you, Sam. We've got no current plans to use this power, and it's been, again, included so that there's consistency between that design and construction phase and the occupation phase. So, it's primarily a safeguard—again, not intended to be used. But an example could be that if it becomes apparent that certain types of structures, such as static caravans, freight containers, or even large houseboats are being interpreted as buildings in a way that was not intended, we could use the power to clarify the definition. Should new forms of multi-occupied residential accommodation emerge, such as modular homes, converted vehicles or floating homes, the power does enable us to make provision through regulation about whether these should be included or excluded from the regime.

Thank you. I'm having the lion's share of questions here, Cabinet Secretary. Forgive me; they're quite technical. 

Can I ask this question—? 

Of course.

Why would modular buildings be excluded?

Jo.

We don't think, in the vast majority of cases, that they would be. This would just enable clarity to provide it if that was needed.

Well, give me an example of how they could be excluded, then. What modular building would be excluded?

Can we write to you further on that one, please?

We'll write to you on that. 

Certainly. Sorry, Sam. 

[Inaudible.]

Steve might—. Sorry, Sam. 

We’ve seen, have we not, proposals to house refugees and asylum seekers on large floating barges. Now, that’s all that that is, but that’s not a building, because it floats.

That's not a modular building. 

No, it's not, but it is a modular structure used to house people. So, that sort—. It comes back to what Jo was saying about batteries—you can't envisage what we don't know now. If somebody comes up with a design that doesn't appear to be a building as we understand it today, but it is still where people live, then this power would allow such structures to be brought in or out of scope. 

I'll let Sam go back into action. Sorry, Sam. 

Thank you, Chair, and I appreciate the explanation from those joining the Cabinet Secretary.

Moving on to section 19(3), it provides regulation-making powers to the Welsh Ministers in relation to the process by which applications to register buildings will be made. There is no obligation for the Welsh Ministers to make such regulations, despite there being a legal duty on building authorities under section 19(1) to register. So, should the power to make regulations be changed to a duty to make regulations under section 19(3)?

It would be our firm intention to make regulations in relation to the registration process, because we consider it essential that a process is undertaken on a consistent basis in every case across all areas of Wales. We’ve already indicated which regulation powers we intend to use, and which of those will only be needed in the future. I would need to give careful consideration to any—because of our original intent for each set of regulations—before deciding whether they may make regulations or should become a must. But I’m not altogether sure that it’s essential that the power set out in 19(3) is turned into a duty. However, were it to be included as a recommendation in the committee’s Stage 1 report, I would be happy to reflect on that further.

I'm grateful for that. And then, as a final point here, section 27(3) gives a very wide power to modify the definition of 'building safety risk', but, in the explanatory memorandum, you state that this is a broad power that could result in significant new duties. Why are you satisfied that this broad power should be left to secondary legislation rather than bringing forward further primary legislation in the future?

So, the Bill, again, is aimed at ensuring that building safety risks are properly addressed and managed. So, as to how risks are assessed and managed, those are the duties we place on the principal accountable persons, and the accountable persons—which have become known as PAPS and APS, which I’m sure everybody will have to get used to—and the enforcement of those duties are what is at the core of the Bill. So, the nature of the risks involved is obviously important, but I don’t think we should need to introduce new primary legislation to add to the definition of a building safety risk. So, fundamentally, this is about ensuring the safety of the people in or about registered buildings, or making sure that someone is held accountable for that.

Of course, any changes couldn’t be added without consultation and engagement with the enforcing authorities, and with the sector at large. So, I can’t see any circumstances in which a risk would be added without that work being done first, as it would be completely impracticable. So, any regulations proposing the addition of a new risk would be subject to the Senedd’s approval procedure, enabling enhanced Senedd scrutiny and requiring Senedd approval.

Thank you. Moving on to guidance, Welsh Ministers are mandated to issue guidance to principal accountable persons, and HMO landlords, for certain duties relating to the assessment of fire safety risks. Why is that the only guidance that has been made compulsory?

Okay. So, we’ve made issuing guidance on fire safety risk mandatory because some principal accountable persons and landlords could struggle to discharge their duties properly without it—so, along the lines that Steve has already outlined to you. Article 50 of the fire safety audit imposes a similar duty on Welsh Ministers for the same reason. The same is not true of other guidance under the Bill, and, therefore, there wouldn’t be any point in requiring the issue of guidance for which there is no demand. We have, therefore, adopted the conventional approach of conferring discretionary power to issue guidance where it would be helpful. But I do want to be clear that it is our intention to issue guidance to support all those with duties under the regime, including giving examples, where appropriate. Steve, is there anything you'd like to add?

Only to say that we've already got a problem with responsible persons, as the fire safety Order calls them, using the wrong guidance, using guidance that was developed for England or using guidance that's out of date, and if we didn't issue guidance on the particular provisions and requirements in this Bill, that's only going to get worse. I can't speak to whether there's an issue with other guidance under the Bill, and whether we might equally say that principal accountable persons, et cetera, would struggle without guidance. Maybe that's something we take away and reflect on. I'm thinking, for instance, of structural safety and things like that. But, as a general rule, I think legislation empowers the issue of guidance rather than requiring it. We've made it a duty here, because folks out there will struggle to do what we're asking them to do and may well turn to out-of-date guidance if we don't put out something new.

How does this work with shell companies and overseas ownership?

We can, again, write to you, perhaps, on that—on shell companies. I know that a lot of work has been done around this. Kim, did you want to say something?

Yes, only to say, really, that there will be a requirement for a UK address. There will need to be the contact details of a UK base.

Post Office Box 99.

There will need to be somebody contactable on a UK basis.

That's the way that ownership of a whole range of things exists. You can go to places in the Channel Islands and see a building where hundreds of companies are registered.

I mean, I—. Sorry.

No—. Okay, I was going—. We're all keen to come in here.

No, keep going, Cabinet Secretary. I'm just jumping at one of the points.

I think that's where our accountable person and principal accountable persons come to the fore, really. One of the reasons we're doing this is following on from Grenfell and that there was nobody who was accountable in that building. So, this is part of our response to that. Steve.

We've tightened it up as much as we can in terms of who has the repairing obligation for the building, which is a legal state that you're either in or you're not. Ultimately, we see in Cardiff an awful lot of new student accommodation owned by Chinese interests, ultimately. Ultimately, you come to the problem that you can't enforce outside of the jurisdiction. All we can say here is, 'If you own this building, you must have a registered address, and you must have a contactable person in the UK.' We can't go beyond that, I don't think, within the limits of competence.

The firms can always go into receivership, can't they?

Oh, they can. Yes.

Especially when they have a firm made only to build this building, and then problems occur and they take that into receivership whilst the parent companies continue. It is a complicated area.

It is very complicated.

I'm just really pushing you to think—. Are you thinking about it? Are you going to address it?

We're trying to do what we can, as Steve mentioned, and within our competence. That's why we have some of the clauses where we can respond in the future to things we don't know about. We are really cognisant of some of the complex ownership of the building. But, as I say, we are doing what we can to try to respond to what had happened previously, when nobody knew who was responsible for it at Grenfell and there wasn't accountability there, and we need to know—. That's the aim of this Bill, to try to respond to that as well.

Returning to the Bill, the Bill contains 11 regulation-making powers that enable the Welsh Ministers to amend primary legislation and in particular definitions. How do you justify the number and content of each of these powers?

So, broadly speaking, the powers have been proposed so far so that we can ensure that in the longer term, as I said, the Bill remains fit for purpose. That is our clear intention. They enable Welsh Ministers to react in good time to new developments, but, as I say, there are no plans to use these powers prior to implementation. Again, it is a long and technical Bill. There are a range of buildings and ownership models covered within that, and so it is wide. Generally, the powers have been proposed to ensure that amendments can be made, if necessary, to reflect the complexity of the built environment and the different interests that people have. There are some that you've outlined, Cadeirydd, already. We are confident that the Bill is fit for purpose, but again, we want to make sure that it is futureproofed. We do think that it's sensible to allow for certain amendments to be made should the future need arise, again, for example, taking into account new operational ownership models and building designs. All of those powers will be subject to the Senedd's approval procedure. Ministers will have to appear before the Senedd to justify their proposed use and the Senedd will have to agree the regulations before they can be made.

And finally from me: the RIA has been undertaken on the basis that the building safety regime will be in place by 2027-28. It states that implementation planning will be undertaken and codesigned with partners. Why do you think that it'll be available in 2027-28? Is that being overambitious?

We are working on that basis because there are a large number of buildings, as I said, that will be covered by the Bill. So, phasing implementation by category will allow local authorities, fire and rescue authorities and duty holders to acclimatise and adjust to the new regime. A phased commencement also means a phasing of regulations under the Bill. We intend to consult both on the regulations and guidance made under the Bill. This will take some time, but I expect regulations and guidance to be in place to enable the registration of category 1 buildings by 2027, along with the fire safety duties on HMOs. That will be part of the first implementation. We expect category 2 registration to commence early in 2028, with category 3 duties following later in 2028. Again, we think that that will help with a smooth transition, recognising that we will need to be raising awareness with lots of organisations and individuals. I think that that preparedness will be the key to the success of this Bill.

Thank you very much. Alun or Sam, have you got any more questions?

No further questions from me. 

Minister, thank you for coming along and thank you for answering our questions. Is there anything else you want to say to us?

Diolch, Cadeirydd, and thank you to the committee for the scrutiny today. Just to confirm, we will be writing following up all of the things that we've agreed to write on today, and we'll get that to you in as timely a way as we possibly can.

And you know you'll get the transcript et cetera. I always feel strange telling a Minister that you're going to get the transcript of it, because you know. But I've been told I must tell you.

And a recovering Chair. I'm a former Chair myself. Diolch, Cadeirydd. Thank you.

Diolch. Thank you very much. Can we have a short break?

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

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

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

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

How do you respond to those statements?

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

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

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

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

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

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

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

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

Thank you very much. On to Sam Kurtz.

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

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

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

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

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

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

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

Okay. Thank you.

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

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

Whatever you think will make us better informed.

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

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

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

The second thing we do is if we're asked a question with regard to something that wasn't in our original report, then in order to make sure that we're happy that this is just minor and does not have any kind of aspects of policy issues, we will carry out a separate consultation exercise with key stakeholders, in order to make sure that we're happy that this is only a minor procedural change and will not have any kind of consequences that would make it unsuited to Standing Order 26C.

So, I'm sorry for the very long-winded explanation, but I was hoping that if I did this you'd get an idea of what we'd do in that process, in the hope that that would help you understand how the Law Commission and the drafters work together when it comes to Standing Order 26C. Having given that very long preface, I'm now happy to direct myself to recommendation 1, section 72, unless you have any questions at all amongst the committee about the general explanation.

[Inaudible.]

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

[Inaudible.]

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

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

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

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

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

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

Thank you. Back to you, Chair.

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

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

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

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

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

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

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

And the same would happen if the ownership was split.

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

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

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

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

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

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

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

Thank you very much. Alun Davies.

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

Thank you.

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

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

I think that's very clear.

Thank you. [Laughter.]

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

Thank you.

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

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

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

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

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

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

Diolch yn fawr. Sam.

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

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

The drafters' notes also state:

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

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

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

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

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

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

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

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

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

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

Thank you for that.

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

Thank you very much. 

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

Thank you.

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

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

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

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

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

Alun. 

I've no further questions. 

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

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

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

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

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

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

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

Thank you. So, when I had a look at this particular recommendation and the provisions, this is again an element of trying to come up with aspects of consistency across a number of different types of measures, so looking at tree replacement notices, also looking at maintenance of land notices. The idea was to try and ensure that they were consistent across these particular provisions. If we look at—. So, this was an element to do with aspects of appeals against these particular provisions, and trying to ensure consistency such that you have appeals against maintenance of land notices, appeals against enforcement notices and appeals against tree replacement notices. This would enable the notice to be able to be varied by Welsh Ministers or, in practice, by an inspector, at any point in the proceedings. So, we were happy that this was a minor improvement to procedure, to ensure that there would be an element of consistency across these different elements of repeals. So, this was one of the areas where we carried out further consultation with stakeholders to check that—that that element of consistency wouldn't go beyond a minor procedural report. We were happy that it wouldn't, and that's why we were happy to make the recommendation that it would fall in SO26C as a minor procedural improvement.

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

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

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

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

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

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

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

That is correct. Thank you, Chair.

Would you like to run us through the reporting points?

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

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

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

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

No, Chair.

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

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

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

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

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

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

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