Climate Change, Environment, and Infrastructure Committee

Welcome back to the committee. We're continuing with our scrutiny work on the Infrastructure (Wales) Bill in the company of the Minister for Climate Change and her officials. We'll move on to the next area of questioning and Delyth Jewell will lead us on this. Delyth.

Thank you, Chair. Good morning, Minister.

A lot of what we've been talking about already in terms of process is plans. It is still very confusing for members of the public. Now, you've said previously that you would like this Bill to make it easier for the public to engage with the consenting process, and you've drawn attention to the fact that there is a single consultation on a single consent, and that it is a more streamlined process. Firstly with that, to play devil's advocate, do you still share the concern that maybe some people who are not as clued up with local groups who might not know that that process is happening might lose out on opportunities to engage with the process, because if they lose out on that one opportunity, then that's gone? And then, secondly, again, looking at the fact that—. Well, some stakeholders have complained to us that the detail about so much of this is left to secondary legislation and, again, that could make it less upfront and easy to engage with for members of the public. So, could you give us some of your views on those different points, please, and whether you think that the Bill, as it's drafted, will be better for public consultation and why that is?

Yes. Thanks, Delyth. There will be two opportunities, and in reality, actually, probably more than two opportunities. So, we're going to enshrine a pre-application stage, where there's a consultation process associated with that. We will set that out in secondary legislation because it will have some detail in it about what you have to do. That will have to be done before the application goes in, the application will have to reflect it, obviously, and so on. But then, actually, during the actual progress of the application, there's a—I can't remember what it's called now—publicity and consultation phase, so there's another phase. So, you'll have two bites of the cherry. One is pre application, when we expect that the developers will do a lot of publicity about what they're proposing and seek views on it, but then there'll be an actual consultation during the process, where you get the traditional—you're notified that there's an application that affects you and you get the chance to come in.

We'll continue to fund Planning Aid Wales, for example, to assist people to know how to do it, but I do genuinely feel that it's a simpler and more straightforward process. If you think about it now, you also have a licensing process and I, personally, in my own constituency, have been very frustrated by being told that I'm commenting on things that aren't yet under consideration because they're for the planning. Or, conversely, I'm now commenting on things in the planning that were dealt with in the licensing, and it's deeply frustrating—people get very cross about it. So, that won't happen, you'll be able to do the whole thing in a single piece.

I also think, and I've had this discussion in committee before, that, actually, the developers will do a pre pre-application process, so before they go into the formal thing, they'll do some informal stuff. So, I think in practice, you'll end up with three bites of the cherry, because they've got to spend a lot of money on this, so they'll poke their finger into it a little bit beforehand. I was asked in a previous committee why we don't regulate that, and my view is that it doesn't matter how far back you regulate it, they'll do something before the regulated bit. Because they'll want to see whether it's worth spending all this money, and that's what that first bit will be. So, we will regulate the pre-application process. They will have had to have done some things before applying, and then, as part of the application process, there's another consultation point. So, I do, honest to God, think it will be a more streamlined thing, both for us to help our constituents with and for people to actually take part in it.

Thank you for clarifying that, Minister, that's very helpful. In terms of the pre pre-application process, I take your point that, however far back in the process you end up regulating, developers will find another opportunity to be able to do something before it, but how would you respond to the views that have been expressed by some stakeholders that this Bill still misses an opportunity to do more to strengthen or to embolden and empower community groups? I don't mean this as a pun, but it's not necessarily a question of, 'If you build it, they'll come', so if you build in this process that people will come to it. I know that, in the past, you've said that you don't think that this Bill would be the vehicle for doing that, but do you think that there's something that could be married to this that could strengthen community voices?

Honestly, Delyth, if the committee thinks there is something else we could do—. I just want to say that I very much want communities to have a powerful voice in this process, so I want them to be able to have their day in the limelight, I want them to be able to express those views. We need to know what our communities think about various infrastructure projects going near them. So, anything the committee thinks that we aren't doing, I'm very happy to do. I do think that no matter how far back in the process we go, they'll put a bit in front of that, because bear in mind the nature of the investment that's being made here. We're talking about people who are investing millions and millions of pounds. They are going to want to take soundings before they spend any money, there's no doubt about that. And then, once they've made the decision to spend some money, we force them into a process where they have to do very specific things to consult about it that need to be included in their application, and then the application itself forces them into another process of consulting.

But if you can think of something, because I absolutely agree, quite often people don't realise until the last minute and all the rest of it—it's a problem, isn't it? It's the classic The Hitchhiker's Guide to the Galaxy that demolishes the Earth, tells us that we didn't go to our local planning office in Alpha Centauri, and if we can't be bothered, then we've only ourselves to blame. It's a really great allegory, I guess, for the current situation, isn't it? So, anything that you can think of as a committee that allows us to bring it to people's attention, I'm very happy to do that.

There's a lot of noise in the system at the moment about some of the DNS applications. I know that people are confused by it, but, at the moment, the noise is all in the pre-planning, so it's all about what's happening in pre-planning. So, I've had people in my own constituency say to me, 'What's happening about this application?' I say, 'It's not an application, they're just taking soundings.' That's an inevitable part of what we're doing here. But, genuinely, if the committee thinks that there's some other thing that we should do to make sure we get widespread engagement, then I'm more than happy to consider it. It's been a perennial problem all the way through.

Thank you, Minister, and I know that a number of us on the committee are already considering it, and we'll keep looking into that in any way to see what we can do to strengthen the democratisation of land, almost, and provide some powers over land. Thank you for that—

[Inaudible.]—add one thing to that?

A number of—

Sorry, can I just add one thing to that?

Yes, certainly.

I'd also be very interested in the committee's views—. We're going to put it into secondary legislation, but I'd be very interested in the committee's views about what the formal pre-application process of consultation should be. So, what should the developer have to do in that? What should we be writing into that piece of secondary legislation for them to do? I'm sure the committee will have a view on that, and we'd be very interested to hear it.

Thank you. Delyth.

Thank you. Certainly, Minister, and the reason why you're doing that is to avoid situations occurring just like that Douglas Adams allegory that you were talking about. So, yes, that's something I know that—. I could see the Chair nodding when you were speaking, so I'm sure that we as a committee will really want to engage in that process, so thank you.

A number of people who have given evidence to us, and bodies that have given evidence, have drawn our attention to how other pieces of legislation perhaps do some things that this Act could try to replicate. One example of that is that Planning Aid Wales highlighted that there are some sections of the Planning Act 2008—I think it's sections 47 to 49—that place a duty on developers to publicise the proposals and to consult—not to just put it in some obscure place, but to consult the local community to take account of responses to that consultation and publicity. Do you think that there would be any scope or any merit in adding equivalent provisions to that in this Bill, and if you don't think that, could you talk us through how you feel that the Bill adequately requires for something similar?

So, we're a bit wary about this, if we're honest, because the requirements in the 2008 Act are developed alongside the local planning authority, so you're putting an additional burden on them to produce something. They're only have regard provisions, so they're not very strong—the point that you were making to me only yesterday on the LCM process, it has to be said. And there's not a minimum standard for that. So, I think we're very hopeful that we can put into our secondary regulations a set of minimum standards and requirements that are better, I would suggest, than that, and that we'll have a rather better set of certain things that the developer has to run through in order to get there.

I feel obliged to make the point that consultation isn't agreement. So, it is perfectly possible that you consult with an area, you get 100 per cent response, the response is negative, and yet the development continues to go ahead, because of course it might have national significance that overrides the needs of the locality. I would very much hope that we aren't in a position where we get 100 per cent, but I just want to make the point: consultation is not necessarily agreement. So, what we'd have is the developer looking to put into their application any mitigating features they thought might assist, to take account of the fact that they've met substantial local opposition, what they plan to do about that, what any compensatory measures look like, blah, blah. But they aren't necessarily going to agree with the outcome of the consultation, and we just need to bear that in mind as we put the regulations in.

Yes, and I suppose as a result of that, again, if suggestions were to be made about how to empower communities, it isn't just about empowering communities and strengthening and amplifying their voices, it's so that more people in the community can understand that process and understand that it isn't always a question of blocking something, and it being a black-and-white situation, but more that there is actual engagement, and not—like you say—just have regard to, but that there's genuinely a listening exercise on both sides.

Yes. So, absolutely right, Delyth.

Okay, thank you. And just finally, Cadeirydd, if there's time, and this touches on something that Joyce had been raising with you earlier, but it's from a slightly different angle. The Campaign for the Protection of Rural Wales has highlighted that the Bill says that a local authority 'must' submit a local impact report for a development on land, but it's only 'may' for a marine area, and they say that a way has to be found to reflect the concerns of coastal communities and coastal authorities. Could you please set out for us how the new process would take account of the views of coastal communities on proposed developments in the marine area, because of that discrepancy?

So, this is a difficulty, because obviously the local planning authorities have jurisdiction over the land and it's not clear at all who has jurisdiction over the sea. So, putting an obligation on a local planning authority that happens to have some coastline where there might be some developments off it, to produce documents it doesn't necessarily have either the knowledge or expertise to do, would be quite onerous, but there may be circumstances in which we think that it's justified. It wouldn't, I think, always be justified, and it's just much more complicated because they don't have the same jurisdictional powers over the marine environment.

I can get Neil to talk you through what we think these local impact reports will do, and why that's more problematic in the marine environment. Again, I'm interested in the committee's view, but it's complicated, isn't it, because the local planning authority doesn't have the jurisdiction or resource over that part of the marine environment. They'll all be subject to the same publicity and notification requirements as developments on land, but obviously we acknowledge that there’s more difficulty with that. So, I don’t know, Neil, if you just want to talk a little bit about the impact report.

[Inaudible.] So, I think, with due respect, we'll pass on going deeper into that, because I think the initial answer gives us a clear indication, unless Delyth wants to, sort of—

No, although perhaps, Minister, if you could write to us—

Write a note, yes.

—with some of that detail, that would be very useful, please.

One just very quick point.

Sure.

You've got to remember that there's a marine impact report as well, which is prepared by Natural Resources Wales, so a lot of the issues will be covered in that.

Of course, yes, that's an important point. I have Jenny and Huw wanting to come in on this as well.

Yes, I just wanted to go back to the obligation to submit three copies by fax, and the way in which the community will ensure that when they’re looking at an application, they are seeing it in its latest iteration. Because I’ve heard stakeholders saying that modern technology allows us to ensure that, when someone wants to find out about how the regulations affect them in relation to something going on locally, they will get the latest version of the planning Act and all the other plans that go with it. I just wanted some clarification that we’ll get updates in real time, electronically, so that people don’t have to search somewhere else.

Yes, so, part of what will happen in the regulations is that we’ll set out the obligations on the developer to keep up to date the electronic portal that has the application on it and so on. That’s partly why we want to do it in regulations because we want to be able to be specific about how that works. I don’t know if you’re—. I personally am obsessed with searching my local planning portal, and you are able to very easily see the hierarchy of documents and how the plan has changed over time, so it’s pretty straightforward to do and we’ll be replicating that, basically.

Would that obligation also apply to any changes to the regulations, the infrastructure?

Yes.

Okay, thank you. Huw.

I’m really interested in the clarity of this for community consultation where projects may or may not fall within the criteria of a significant development. Because we had that earlier discussion, for example, about hydrogen. Now, if the developer currently, in the current regime, was taking forward a proposal, they could do it under local planning. You’ve made clear that, for example—and this wouldn’t only be on hydrogen—that on hydrogen, there is no way you could conceive that it would fall outwith this, but currently it can. So, if we’re talking about giving advice on, ‘Here’s what developers should do with good consultation’, well, falling outside of this Bill, a developer could start it off as a local planning thing with hydrogen or something else and then it gets escalated, and the public miss out on that guidance on community consultation.

If it were escalated, they'd have to start the process.

Right.

So, if you put in an application to the local planning authority to build an electrolyser in, I don't know, the central square of Swansea, for the sake of argument, and the local planning authority mysteriously said, 'Fine, we'll have a look at that', and then at that point somebody here would say, 'I think that might be rather more significant', you'd have to start again basically. It's not in the developer's interest to do that, Huw. It's in their interest to explore whether that's likely to happen because it's going to cost them a lot of money to do that. There's no sneaky way through it. It will just be more expensive, if you do it like that, for the developer.

Okay.

Okay, there we are, thank you very much. We'll move on now then and Janet.

Thank you. So, we've received evidence saying that there’s too much flexibility in the Bill to change the time frames for deciding applications. Witnesses have said that deadlines should be fixed, as in the NSIP process, because it provides clarity and focuses the actions of participants to provide information in a timely manner. What is your response to this?

We think that the overarching timetable should be set on the face of the Bill, so that's 52 weeks—a year, obviously, in lay person's terms. It's very similar to the Planning Act 2008. Then the sub-time frames, like the period of time to validate an application or the examination period and so on, will be in the regulations, so that we can keep them under review if things aren't working out. We think that we also need to have the ability to agree a different timescale, because there are some projects that are immensely more complex than others. So, if you take the Wylfa project, for example, their development consent order was extended I don't know how many times—loads and loads of times—before the developer eventually pulled out because of the sheer complexity of what they were trying to do. We'll set the deadlines by which the various pieces of information are required, but, again, by agreement you should be able to extend or, indeed, contract those, actually, if you're in a position where you could go faster because we need it to be flexible enough to be able to deal with that. And I'm really vehemently against putting those onto the face of the Bill. I think that would really end up being a Bill that just isn't futureproof. So, I think it requires scrutiny. The secondary process should be scrutinised effectively, but I think you need both things. You need a standard process set out in the secondary legislation, which sets out the various sub-parts of the process, but I'm afraid you also need the ability to make agreements outside of that process for perfectly good reasons.

I'm conscious that we are—well, I'm keeping a worried eye on the clock at the minute. So, Jenny, very briefly, if you just want to—.

Taking the Wylfa example, surely if they'd done all the spade work in the pre-application stage they'd have realised that it was a more complicated process and therefore it would still be possible to keep to the six months, three months, three months.

So, the problem there is you just don't know what's going to happen. So, with Wylfa, for example, one of the things that happened is that one of the investors pulled out at one point. So, you just don't know what's going to happen. So, you don't want a project that might be very seriously beneficial to the people of Wales to fall because they meet a deadline of 52 weeks, an investor has fallen out and they haven't got another three weeks to get another investor on board. You wouldn't want that to happen. So, we want to have enough flexibility for people to be able to flex the project sufficiently to keep it going.

Not all of these projects fall on planning grounds. The affordability of them is often one of the things that matters. So, making sure you can keep the financial consortium together that's doing it. Or, for example, I've seen over the course of my career projects where the technology that's going to be used suddenly isn't current, or the manufacturer goes out of business and you have to get another partner on board and so you need an extension of time. There's all kinds of stuff that happens that it's perfectly reasonable to allow extra time for that wouldn't have been predicted at the beginning. And I think if you have a very inflexible system, you'll end up with a system that just doesn't work.

Except that we've heard evidence that it has worked well in England, with the Planning Act 2008.

Well, they have lots of flexibility. The Secretary of State makes rulings in England all the time.

Well—

Okay.

Okay.

Back to you, Janet.

It has been suggested to us that, similar to the nationally significant infrastructure projects process, should the Welsh Ministers wish to extend the deadline for determining an application, they should make a statement to the Senedd setting a new deadline and outlining the justification for taking this course of action. Would you consider including such a provision on the face of the Bill?

I think that's just not workable, to be honest; I really don't. I think that would just put a level of complexity into the system that just won't work.

Okay. That's me done.

Although that is something that happens to an extent in Westminster, isn't it?

I mean, if the committee wants us to look at it we will, but you're putting a level of complexity and uncertainty in there for the developer. So, if you imagine the scenario I've just set out—

It's making a statement, not asking permission.

Yes, but still, you're still going to have to tell the developer that we've now got to go and make a statement in the Senedd. It's got to be timetabled, it's got to—. What's the purpose of the statement? If all you can do is nod at me, what exactly is the purpose of it?

Okay.

So, I'm not too sure—. That just puts another layer of complexity into something, and I don't really understand what the purpose of it is.

Very briefly, Huw.

Is there a purpose to it, if there's something that's highly contested, even though the process has been followed and procedures done, for an elected representative to stand up and say, 'Well, actually, I get all of that, but I fundamentally disagree with it and I want to say publicly I disagree', and then be voted down or it'll just pass by? We could be talking about a fortnight's procedure. How often would it happen? But I'm just thinking that I can't imagine myself necessarily being in that scenario, but I can imagine there would be other elected representatives who would say, 'I want my last stand. I can't stop it, but I want a say.'

I guess. I think there are other places for such a representative to have their last stand. [Laughter.]

Okay.

Okay. Thank you. Joyce.

Good morning. We've had evidence from a former examining inspector telling us that section 55 of the Planning Act 2008 allows an inspector to consider whether the material submitted is comprehensive enough to allow a meaningful examination to take place. Would you consider including a similar provision on the face of the Bill?

I think we can do that—don't we, Neil?

Yes, we can. I think at the moment what we see is that we've got quite a detailed validation process, and I wouldn't expect an application to move through into examination if it wasn't deemed to be valid. There's also the opportunity then for the inspector to ask for more information, so in practice it does happen. It might not be on the face of the Bill, but that is the process that is followed as part of the examination.

Okay. So, you're saying—. Did you say that you're happy to put that on the face of the Bill? It wasn't clear.

We think it's already there, basically.

You think it's covered.

Yes. We think the inspector already has the ability to ask for more information if they need it. I think that's what we're saying.

Yes.

Okay. There's mixed feedback on the provisions in the Bill that allow either the examining authority or the Welsh Minister to make the final decision. Can you set out your reasoning for that flexibility and what proportion of applications you envisage being decided by the Welsh Ministers or the examining authority? Of course, we had some witnesses say that Welsh Ministers should be the decision maker in every application, which gives political accountability.

We anticipate that the majority of the decisions will be for the Welsh Ministers to make. I suppose this gives us the flexibility where something becomes more routine to allow the examining authority to do it without having to go through the additional Welsh Ministers' loop. We have no intention of changing what we've got now, and the vast majority of them will come to Welsh Ministers for determination. It's trying to give us a little bit of futureproofing and flexibility in the process, so something just becomes so routine that although it's a significant infrastructure project, actually it's so straightforward that we just allow it to be done by the examining authority. But we think those will be very few and far between, certainly at the beginning of the process.

Moving on to public inquiries, people have said—and they are—that they are adversarial and they can be inaccessible to the public, which is the main thing here. NIPA told us they should only be used in exceptional circumstances. Can you explain the rationale for including the option of an inquiry and provide an example of when that approach might be used?

Yes. This would be reserved for highly controversial, very large projects, where Huw's 'last stand' type of person wants to have a go, and where we feel that there are significant issues around whether or not the thing should go ahead, and it warrants the kind of public inquiry that you see, because, I don't know, it's a huge development in a much-loved area covering loads of triple SIs or something, and whatever, so where you think it warrants it. We think that's pretty exceptional. We're not suggesting that that's a normal part of the process, but nor do we think that we could say with any real certainty that it would never be warranted, so we need to have the provision there in case it is warranted. I think we probably can all think of moments in our past where there's been something where we think a public inquiry would have been the only way through trying to decide who's for, who's against, what the impacts are and all the rest of it. My own very personal view is that in the age of social media it's sometimes very difficult to tell where the real opposition or support is, and sometimes you need to be able to test that in a more formal setting, but we would be very surprised if there were more than one or two in a decade. It's not something you're going to see on a regular basis.

Okay. Minister, I think this goes back to something you said earlier about the pre-application. Very often, people think the pre-application and all the noise that goes around it—and that's where the most noise is—does amount to what we're talking about now. So, I think it's about—. I know that the Bill is very clear on that, but I think the understanding of that needs to go out into the communities perhaps better than it currently does. And whoever's responsible for that takes that responsibility, or joint responsibility, on board, because, like you, I've been involved—I would have been involved where I cover—in that sort of situation, where people firmly believe that they're making the adequate representation, but they're making it at the wrong time and place.

Well, I think the real issue there, Joyce, is to ensure that people realise that they need to do it again. So, one of the things that really bothers me about some of the pre-application stuff we've got going on at the moment is that people will think they've done it, they've put their comments in, and, actually, it's prior to anything formal happening. So, it's just making sure that the message gets out that, if you have engaged in a pre-application, or pre-pre-application in this bit, you actually do need to resubmit all of that.

I think you're absolutely right there, Joyce; I really do think we will need to do a good comms piece on understanding that. And I think, probably, we need to work with Planning Aid Wales and others to make sure that we start to get that message out.

Thank you.

Thank you. Janet, did you want to come in on this as well?

Yes. Thank you. Several stakeholders highlight the potential impact on developers with cross-border projects, on land and in the marine area, questioning how regimes on each side of the border will interact. RenewableUK Cymru specifically identify above-ground electric lines projects. Are you content that the Bill is sufficiently clear on the consenting of cross-border projects?

Yes, we'll have to discuss this with the UK Government and English counterparts all the time. We have the ability in the Bill to switch our process off if we think it's better to be done the other side. So, we think that's the best way for it to be determined, but I take the view—I think probably shared by most of us on the committee—that if something's happening in Wales, it should be decided in Wales, unless there's a very, very good reason why not. So, we'll have to obviously cross that bridge when we come to it. There is a mechanism to do that, and we will need to have close liaison—as we do already, actually—with the planning authorities on the other side, and with the—I can't remember what theirs is called—developers of SIPs, I think, isn't it, developments of significant infrastructure projects.

Okay. And then the one-stop-shop infrastructure consent proposed in the Bill does not include environmental permits or protected species licences. Could you explain the rationale for not including these licences?

So, the Bill isn't intended to cover everything. The Bill is intended to sit within a suite of measures that pertain—. So, we haven't set out every single thing that you've got to do for a particular permit or anything else on the face of the Bill. You are expected to comply with all relevant legislation, so you're expected to comply with existing legislation on environmental permitting, or on—. Actually, we've just discussed it, haven't we, they've just changed the language and I'm going to have to get my head around it—

Environmental outcome reports.

Environmental outcome reports—thank you, Neil. So, you are expected to comply with others. And as I said, Janet, in earlier remarks to the committee, this isn't intended to be a catch-all of everything you've got to do; this is sitting in a suite of existing obligations.

But regarding the protected species licences, though, a small example is where we've got the windfarms off the north Wales coast—we had the Rhyl Flats, and then Gwynt y Môr—and there have been surveys since and some of the protected species have declined in numbers. So, I would have thought, in terms of our nature recovery agenda that we might—. And, again, it goes back to the point made by Joyce—too often, developers come in and it's the need for the renewable energy that tops the actual marine conservation and the protection of our natural species. And I think we're all very keen this time around—. By their own admission—. I remember when it came through planning in Conwy County Borough Council, and there's a lot been said since that, if we knew then what we know now, there should have been more safeguards in place, and more protections and licences. So, how do we avoid almost walking into a scenario where we're going to see some of our most protected species decline?

So, I think there are different ways of doing that. So, first of all, we're constantly keeping 'Planning Policy Wales' under review. So, we'll put a whole series of things in 'Planning Policy Wales' as we develop our biodiversity goals that reflect the biodiversity goals, and I think that's the best place to put them. So, we will have a national policy on biodiversity enhancement, for example, long-term management, and all of that will go into the policy documents that the application has to comply with. So, they'll have to show how they comply with it.

And then, just on the protected species licences, we'll just have to look at that with NRW about the most appropriate way forward, because I think what we want to do is we want to make sure that we've got all of the necessary information in the application in the first place to be able to deal with all of the various licences, Janet, rather than have to have separate things in the process. So, what we'll be doing is working with NRW to make sure that, when we specify what the applicant has to do in the application, it has all of the right information in it.

And how can we be confident about the weightings to the value of the protected species, as opposed to the need for the renewable energy? Also, we know that there are issues with resource and capacity within NRW. If there are a lot of projects coming along the line, do you believe, Minister, that NRW have the ability to drill right down to this so that nothing is overlooked?

Okay, we did discuss resources earlier, but it has a relevance here.

They weren't included in—

I'll let Neil explain the detail of it.

Neil, yes.

But, basically, NRW could object to having it and make them go through the consenting process anyway,

That's right. So, I think that's the important point. Both habitats regulations and assessments, and environmental permits, aren't automatically included, but they can be included. And a deemed licence can be made as part of the process, provided NRW are happy with that. So, I think you have to ask the question first: are you happy for this to be included in the process?

I think the point you were making about how you consider all of these environmental considerations come back right to the start of the conversation, when we talked about a more strategic approach and understanding of the natural environment, offshore in particular.

Okay, thank you. We've seen in England—and we've spoken about loss of biodiversity—obviously, there's a requirement for a net gain of 10 per cent. RSPB Cymru has suggested to us that, maybe, this is an opportunity for the Government to push for, maybe, 20 per cent, because we always like to do things better than England. Clearly, is that something you would consider, in terms of writing in some biodiversity gain requirement?

I don’t think this is the appropriate vehicle for that. I'm very interested in writing net biodiversity gain in, but we have another piece of legislation coming, as you know, with an environmental governance body in it, and a set of targets. That's the place to do that. This is a straightforward process Bill, and I think complicating it with arguments around restoring nature and net biodiversity gain—. This is just not the right Bill for it. There is another opportunity for the Senedd to do that, though, and obviously those Bills—. These are a suite, so the forthcoming Bill will also interact with this one.

Indeed, and we'll no doubt be talking about that quite soon, I hope, as well. Okay, we'll move on to Joyce.

I'm going to talk about consent orders and compulsory purchase right now. Network Rail raised concerns about section 72, which states an infrastructure consent order may require extinguishment of certain rights, restrictive covenants or removal of apparatus of statutory undertakers if the Welsh Ministers are satisfied that doing so is necessary. And they said they’d like to see an appropriate test in place so any such proposals don't impede its duty as a statutory undertaker to carry out the works. So, are you content that the Bill provides sufficient safeguards, to Network Rail in this case, in terms of maintaining its access to land to carry out its statutory duty?

Yes. So, we've got section 72 in the Bill, which is a restrictive power, to ensure Welsh Ministers give appropriate consideration to the statutory undertaker's duties, where rights or restrictive covenants are proposed, and that's the place that we've got this marked in the Bill. I'll let Neil or Owen talk to you about the detail of it, though.

Owen.

In terms of where Network Rail were coming from, from my understanding, was section 72 and then section 65 as well, I believe. I think it's quite clear that, at section 70, both these powers revert back to section 61, which is the principal, overarching power in terms of the needs of the public interest. So, whichever section you look at, you must refer back to section 61 to actually establish the test of whether it is acceptable and in the public interest. And, obviously, natures of public interest would also include the functions of a statutory undertaker, given that they often operate in the public interest.

I think you also need to look at sections 72 and, I believe, 65 in terms of how they interact. One is about the statutory undertaker's land itself, and that is a different function to where it is then someone else's land, with a statutory undertaker right over that land. That power is about ensuring where that land is required. There are no necessary restrictions on it to enable it to function for the purpose it's being required for, and I think that is a different test. But also, both of these tests come back to section 61, and it is in the public interest—that is the fundamental nature of compulsory purchase. So, I think there is the protection there, if you revert it back to section 61.

So, you're quite content. They raised concerns, they want it aired, and they did, as you say, mention section 65 working with section 72. I don't think they mentioned section 61. But you're quite content. Because, moving on, the National Infrastructure Planning Association has said the requirement for a special Senedd procedure in relation to the compulsory acquisition of special category land should be removed from the Bill because this process would duplicate scrutiny already undertaken through the examination process and slow down the deployment of renewable energy infrastructure. Can you explain the reason for a special Senedd procedure in these circumstances?

So, it's for where you've got particular sections of land that are protected and the objection of the landowner hasn't been withdrawn as part of the process. So, the National Trust is one of them. So, you've got somebody applying to build a windfarm on National Trust land and the National Trust objects to that, and that objection is extant, then you'd want to go through a special process to make sure that compulsory acquisition of that land as part of the process was proportionate and definitely in the public interest. So, it's just an extra test. You could also imagine it for common land, for example, where access to common land is being restricted as a result of an energy development of some sort, where you might want to go through a special process to ensure that it's in the public interest—definitely in the public interest—to remove what is an existing public right in order to override it with something else. It's not going to be very, very frequent, but I think there is a need for an additional safeguard. This is a compulsory purchase, remember, so this is a big thing. So, I do personally think there is a need for an additional piece of Senedd scrutiny to be very certain that it is in fact in the public interest.

We hear very often about ransom strips of land. Would this not be advantageous in those circumstances—you know, people recognising very early on, 'If I just hang onto this bit here, then the price goes up'?

So, the whole purpose of putting compulsory purchase in is to stop that happening. I mean, that's been an absolute bane in loads of places all over the place, hasn't it? So, the idea of including the compulsory purchase as part of the application is to streamline that process, and that would work. But if the ransom strip in question is, I don't know, 4 miles wide and happens to be an SSSI owned by the National Trust, then that might be a different kettle of fish.

Yes. Yes, but I wasn't thinking in those terms, actually.

But, you know, if you're talking about the sort of stuff we usually get, where something the size of this desk that is holding up an entire project, and you have to go right through the whole lands tribunal process in order to acquire it, that's what we're looking to try and overcome.

Okay. We heard from NIPA that, for Crown land, and I quote:

'The need to obtain the consent of the appropriate Crown authority should be limited to compulsory acquisition powers only, and not for other provisions in an order which relates to Crown land.'

What's your response to that?

'My iPad has turned itself off' is my response to that. Hang on one second. Technology, eh? Apologies. Neil, do you want to pick it up?

Yes, okay.

My iPad's turned itself off.

So, this is usual practice. Any provisions that affect Crown land need to obtain the consent of the Crown authority, otherwise it cannot be incorporated as part of the infrastructure consent order, and that should be obtained as soon as possible.

Okay. So, is there an alternative to that—for example, a statutory pre-application discussion with the appropriate Crown authorities over any Crown land that's intended for use in that application?

So, back to that point about pre-application, talking to the Crown and other landowners is obviously something that we would encourage to take place very early in the process.

Until such time as we require the powers—is that right?

Yes. It's just a commonsense thing for the developer here, isn't it? If you're applying for consent to build something on somebody else's land, then it's obviously in your interest to have the consent of that landowner. If you can't acquire the consent of the landowner and you think that there's a good public interest for why you should go ahead, then the Bill allows you, the process allows you, a chance to do that. But the likelihood of your prevailing against the Crown Estate is low, I would say, so you'd have to take a view, wouldn't you? And actually, the circumstances in which you're trying to acquire a very large piece of land off a reluctant landowner, there's quite a high bar for a public interest test there—'Why do you need this piece of land in particular; why won't it go somewhere else?' It's quite a high bar, the public interest test—we glibly say it, but that's not an easy thing to do. So, there's an incentive on the developer to get the agreement of the landowner in question upfront, for obvious reasons—it's going to be a lot more smooth a process for them if they have that consent than if they don't.

Where these things might meet, of course, is around the first question I asked, on Network Rail, especially in Wales, where you've got the railway hugging the coast—not ideal, but it is. I've come across many complications where those two bodies can be, sometimes, at odds. Would this help?

Yes, it would, because you'd be able to show that there really is only one route for something. And, effectively, that's how the public interest test works, isn't it? There's an overriding public interest in acquiring this piece of land or having this route because it's the only one available, and, without it, you're not going to be able to have this development of national significance that we need for whatever target. So, that's a very good example, Joyce—where, I don't know, a whole highway has fallen into the sea and you need to re-route it in a particular way, that would be a very good example of what might fall under this. Or a railway line is another good example, but so is a transmission line for electricity, for example. There are several examples where you can see that there would be only one route and that a landowner who didn't want you to use that route might be holding up an electricity supply for a whole area of the country that otherwise couldn't be reached. So, that's the sort of test that you'd be looking for; it wouldn't be that it would be cheaper for the developer or that they couldn't be bothered to go and find somewhere else to do it.

Thank you.

Okay. Thank you, Joyce. Just a couple of questions on enforcement, then. Local planning authorities have told us that the enforcement provisions in the Bill aren’t clear enough. For example, they say it’s unclear who should commence proceedings—whether it's them as local planning authorities, or the Welsh Government. Do you believe the provisions are sufficiently clear? And if not, I presume that would be something that you'd be willing to consider revising.

Yes. We think it can be done in guidance, because that's how we do these things already. It's kind of normal to behave like this. So, the local planning authority is the authority, but we sometimes overreach them, and that's happened during my time as Minister already, in existing systems. We don't do that very often, and we alert the planning authority if we are going to do it, but sometimes it's necessary. By and large, the enforcement is done by the local planning authority, unless there are very specific national reasons not to do so. I think probably colleagues on the committee are very aware of the one that we've recently overreached a local planning authority for, and you'll see that that's been in the news for a long time, and it's a really big deal. And that's what we're saying here. So, I think it's pretty straightforward—it's the local planning authority, unless there's some huge national significance reason why the Welsh Ministers should enforce. For offshore, we're the enforcement authority anyway.

Okay. Thank you. Janet, you wanted to come in on this?

Yes. There was something on the tail of yours. Currently, planning authorities, when it comes to enforcement where conditions are breached—now, I'm talking on more minor developments—quite often, when conditions are breached that have been put on there at planning application decision time, and then when I contest that, my local planning authority turns around and says, 'We simply haven't got the resources to enforce adequately or, indeed, at all against this particular application breach of conditions.' So, how can we be reassured that this won't apply on bigger applications like this? And also, returning to resourcing issues, LPAs were concerned that they don't have the resources or, indeed, technical expertise to carry out enforcement functions in relation to large infrastructure projects. Now, that alone is very worrying to me, because, too often, planning permission is granted, or, in this case, licences obtained, and then, when it comes to enforcement action, the bodies that are responsible for it say, 'We just don't have the resources, so we can't enforce.' How can we—? We're talking large infrastructure projects here. So, how can this committee be assured that the resource is there, the skills are there, and that there won't be these breaches in the same way there are on more minor developments?

So, I think the real answer to that is the amount of money invested in the project. So, the more minor breaches you're talking about, I'm sorry if this is a bad characterisation of what happens, but it might be worth the risk that the planning authority won't enforce if you build a wall that's higher than the permitted development rights, or you put up something; it's worth the risk. These are companies that are investing tens and hundreds of millions of pounds. They aren't going to take the risk that that's going to be in breach. We've had no breaches on NSIP and only one ever on the DNS regime, because the consequences of needing to be enforced against are so financially awful that we just don't think it's going to happen very often. If it did happen, then we'd be prepared to help the local authority in doing it, but we just—. It's just the financial nature of these developments that they are not going to want to take the risk that having built something that cost £100 million, they then either have to demolish it or move it. It's just not worth it to do that.

So, on the two you mentioned, Minister, was enforcement taken and were they, if you like, hit in the pocket or made to put right where they'd breached?

So, I can't talk about the individuals, Janet.

No, I'm not mentioning—we haven't mentioned any.

There's only ever been one on a DNS project. And it's because the amount of money involved is just astronomical. So, we just don't think it's a huge problem. If there was a big problem with one of them, then we would assist the local authority with it, quite clearly, because we think it'll be so unusual that we'd all know about it. But it's not the same. I accept entirely that local authorities have had real problems recruiting planners through all the austerity years, and we know that they struggle with small breaches, and they have to take a view of the best use of their resource. But, as I say, these are not things where you'd want to take that risk. I mean, that's—

And I think the message that you stand ready to support planning authorities if and when such a need arises is reassuring, I think, isn't it? Yes. Okay. Fine. Just a couple of questions, then, to conclude on discussions and dialogues with UK Government, because, clearly, there's a need for that to happen, and maybe you could give us an update, really, on what discussions you've had about the provisions in the Bill with the appropriate UK Minister under Schedule 7B of the Government of Wales Act 2006.

I'm going to let Neil do that, Chair, because he's the one that's been doing all of the negotiation.

Good. There we are. Tell us all about it, Neil.

Oh, all right, okay. So, in terms of the Crown consent, we're still speaking with our UK Government colleagues. They're engaging positively. I think we've had conversations last week most recently.

Yes.

So, they're ongoing. We're obviously working through that process. UK Government have indicated, and we have negotiated with the Ministry of Defence around some of the concerns that they had. So, we think that's generally positive, and we think we're going to get a response before we would need to make any amendments at Stage 2. So, I think we're okay on that one. So, it seems to be progressing as fast as it can, accepting that our colleagues across the border are trying to put a piece of legislation through their system at the moment, which is, you know, interesting. I'll say no more.

Okay. And the transfer of legislative competence to the Senedd for consenting of offshore energy generation stations between the edge of the Welsh zone and the territorial sea—can you clarify the Senedd's ability to legislate also in respect of energy storage? There are a couple of things there.

So, we're not getting anywhere at all with this, it has to be said. I understand that you've been written to by the UK Government saying the matter was resolved; well, Minister Stuart and I must have been in very different meetings if he thinks the matter was resolved in the meeting we were in. We just discussed broad energy schemes and we had a bit of a difference of opinion on the contracts for difference process and its efficacy or not, given that no offshore windfarms have bid into the process. So, my view of how well that’s gone and his seem to be rather diametrically opposite to each other. But we have had absolutely no formal response on that. I raised it at the meeting. I was told in interesting language by the civil servant there that it had been 'beached during the turmoil', which was what they said, and it appears to have been continued to be beached, because we’ve pressed for a response and we’ve had no response.

Normally we work very pragmatically with the UK Government, despite the different colour of the politicians involved. Most of this stuff is not controversial or difficult, so I’m very surprised that this is happening. So, we’ll write once more. It doesn’t seem at all controversial to us. We don’t understand why it would. We’ve had no response from them about why it would. If the committee wants to write again, it would be very helpful.

Yes, okay. I'm sure we can consider that. Yes, okay—thank you. And finally, then, from me—and maybe Members might have other things they wish to raise—could you maybe set out how the findings of the recent NSIP review in England have been taken into account in the Bill, if at all?

We'll continue to look at that. Neil is very engaged in that process. We think we’ve covered off some of the things already in the Bill. So, they’ve talked about full-cost recovery; we’ve obviously put that into the Bill. They’re talking about improving the pre-application process; we’re clearly already doing that in our Bill. But we’ll continue to look at what they’re doing and see if there’s anything we can learn. If the committee has a view on that, we’re very happy to look at it.

There we are. Thank you. Jenny, did you want to just raise something?

Just on the timescales, as we've got five minutes. You made a very good case for why there should be a bit of flexibility on the examination period if, force majeure, you know, a partner goes bust, or needs replacing. What about the other periods, the idea that there is a fixed period for the examining authority to complete its report and three months for the Minister to make the decision? For what reason would you—? There is obviously a process in the English Bill in 2008 whereby the Minister has to come to the UK Parliament and specify why there's a need to extend the period before a decision's made, and you can see that there would be, force majeure—a massive oil spill could definitely require re-examination of something.

I wouldn't have any problem with that bit. I can see circumstances in which the three months to decide might need to be lengthened. I can think of several already where there are such complexities. Bear in mind that that's the process by which the officials write us the advice on which we—. It's not just me reading a piece of paper for three months. There's a huge amount of work that has to go on to get the advice to us, which we then need to consider. So, you can see circumstances in which it might need to be extended. If the committee feels strongly about it, I would have no particular objection to having to come and tell the Senedd why it's taking longer than that. They would be very good reasons. They would be things that were extraordinary that had happened, or some event had taken place. I don't know—COVID had happened, for example. There are things that would happen that you can see might have that effect, but I've no objection to telling you what they are.

Okay. Because I think it would be good if the Bill stopped Ministers just shoving things into the long grass because it's politically inconvenient.

Probably the most common reason it happens is there's been a policy change. So, there's a different policy context for the original application and so we have to write out to the parties again, and we have to gather that evidence back in. So, that tends to be the reason why a delay takes place at the later stage of the process.

Okay, thank you. Last question to Janet.

Yes. Mine is a question that we missed earlier. We’ve heard that there’s a lack of reliable environmental data relating specifically to the marine area. The Campaign for the Protection of Rural Wales has suggested the Bill could require private developers to make environmental information collected in relation to their project available to NRW and the Welsh Government, so that it’s in the public domain. Where this doesn’t conflict with commercial sensitivities, is this something you would consider taking forward in the Bill?

So, we've discussed that a little bit earlier, I think. We've had that discussion with the Crown Estate. Much of the data involved is actually tied up in the bidding rounds of the Crown Estate. We wouldn't have any—. Even if we put it in the Bill we wouldn't have any way of getting hold of it unless the Crown Estate's process allows that, because the developers will just tell us it's commercially sensitive otherwise. So, I don't think it adds much to the—. Well, I don't think it adds anything to the Bill, and it's probably unenforceable. A better way of doing it is to make the process via the Crown Estate's bidding in the offshore region responsive to this, and, to be fair, we're having a perfectly good conversation with them about it.

Thank you.

Okay, well can I thank you, Minister and your officials for a thoroughly informing and valuable session? And no doubt we will now be considering as a committee our conclusions for Stage 1 and bringing those forward as I outlined according to the timescale, earlier. So, diolch yn fawr iawn. Thank you so much.

I think, Cadeirydd, there was one thing that we agreed to write to you on. Do you want to just—? If you wouldn't mind just reminding us what that is, I'd be grateful.

Yes. Our officials will check the Record. And you will be sent a transcript, by the way, of the Record just to check for accuracy. So, with that, diolch yn fawr iawn. Thank you.

Lovely, thank you very much.

So, we'll move on to private session, and I propose in accordance with Standing Order 17.42(vi) and (ix) that the committee resolves to meet in private for the remainder of the meeting. Are Members content? Content. Yes. Thank you very much. We'll wait a second until we're in private session. Thank you.