Commentary on Sections
Part 3 – Repeals of Welsh Legislation
Section 4 – Repeals and connected amendmentsSchedule 1 – Repeals and connected amendments
120.Schedule 1 (introduced by section 4) contains repeals and amendments of various enactments.
Part 1 – Rural Development Boards
121.The aim of Part 3 of the Agriculture Act 1967 (‘the 1967 Act’) was to promote the better use of hill lands and provided Ministers with powers to set up Rural Development Boards that could draw up programmes to deal with the “special problems … of rural areas of hills and uplands, and the special needs of such areas” (section 45(1)). Schedule 5 to the 1967 Act prescribes the mechanism for establishing such a Board and its constitution. The functions of establishing Rural Development Boards in relation to Wales now sit with the Welsh Ministers.
122.No Rural Development Boards have been established in relation to Wales under the 1967 Act.
123.Paragraph 1 of this Schedule to the Act amends the 1967 Act to disapply provisions in Part 3 of that Act in relation to Wales, including amending the relevant interpretation provisions to remove references to Wales that would no longer be required. Schedule 5 to the 1967 Act is introduced by section 45(5) of that Act. As it will no longer be possible to establish a Rural Development Board for an area in Wales, Schedule 5 will not apply in Wales.
124.The Act also makes consequential amendments to the Local Government (Wales) Act 1994 and to Schedule 3A to the 2006 Act.
Part 2 – Enterprise zone areas
125.The Local Government, Planning and Land Act 1980 (‘the 1980 Act’) introduced powers to establish ‘enterprise zones’ to see how the relaxation of planning control, exemption from non-domestic rates and certain other fiscal incentives could help with the regeneration of run-down and derelict urban areas. In the following decades, some 35 orders were made, between them designating just over 100 zones. Of those, four orders designated 15 zones in Wales(3).
126.Paragraph 4 of this Schedule to the Act amends Schedule 32 to the 1980 Act to disapply these provisions in relation to Wales. This has the effect of removing the Welsh Ministers’ power to designate enterprise zones. The Act also makes consequential amendments to the Local Government (Wales) Act 1994 and Mobile Homes (Wales) Act 2013.
127.A second type of enterprise zone was subsequently provided for in the Capital Allowances Act 2001, as amended by the Finance Act 2012; these aim to encourage economic growth and investment. There are currently eight enterprise zones operational in Wales, each specialising in a specific business sector. The Act does not affect this second type of enterprise zone.
Part 3 – Housing action trusts
128.Part 3 of the Housing Act 1988 (‘the 1988 Act’) makes provision about ‘housing action trust areas’. These are areas where the Welsh Ministers (or in England, the Secretary of State) consider that living conditions of local residents, social conditions and general environment could be improved by the creation of a housing action trust. Between 1991 and 1994 six areas were designated housing action trust areas, all of which were in England. No housing action trust areas have been designated in Wales.
129.Such a trust could be designated as the local planning authority in its area (under section 8 of the Town and Country Planning Act 1990). None of the trusts were designated a local planning authority. All of the trusts established for areas in England were wound up at various dates between 1999 and 2005.
130.Paragraph 7 of this Schedule to the Act amends Part 3 of the 1988 Act so that it does not apply in relation to Wales. This will mean that housing action trusts can only be established for, and exercise functions in, areas in England. In consequence of the proposed changes to the 1988 Act, amendments are required to various other Acts.
Part 4 – Local plans, structure plans and unitary development plans
131.The planning system in Wales is ‘development plan-led’, which means development plans are the starting point when making planning decisions. Once a development plan has been adopted, decisions on planning applications are made in accordance with the development plan, unless other material considerations indicate otherwise. The development plan system in Wales is made up of three tiers with plans prepared at national, regional and local levels.
132.The primary legislation on the formulation of development plans used to be in Part 2 of the Town and Country Planning Act 1990 (‘the 1990 Act’). Part 2 provided that generally there should be for each area a structure plan (usually prepared by the council for a whole county) and a series of local plans (each prepared by the relevant district council, covering all or part of its area). The 1990 Act also provided, where there was a single-tier system of borough councils, for unitary development plans (UDPs). When the current single-tier system of local government was introduced in Wales under the Local Government (Wales) Act 1994 (‘the 1994 Act’), the new unitary authorities were required to prepare UDPs for their areas.
133.Part 6 of the Planning and Compulsory Purchase Act 2004 (‘the 2004 Act’) then introduced for Wales a new nation-wide Wales Spatial Plan, to be prepared by the (then) National Assembly for Wales. It also introduced a requirement for local planning authorities to produce local development plans (LDPs) that, when adopted, would replace plans adopted under the previous systems.
134.The Planning (Wales) Act 2015 amended the 2004 Act by introducing the National Development Framework for Wales (NDF), which became part of the development plan and replaced the Wales Spatial Plan (as of 24 February 2021). It also provided for strategic development plans (SDPs) to be produced at a regional level, with the Local Government and Elections (Wales) Act 2021 requiring their production by corporate joint committees.
135.Essentially therefore the progression over time has been local/structure plans (up to 1996); UDPs (1996 to 2005); LDPs, SDPs and the NDF (2005 onwards). Each time the system has changed the amending legislation has provided for transitional arrangements. These allowed authorities preparing plans under one system to continue to do that and only move to the new system once the old plan had been completed. When the 2004 Act came into force there were still authorities in Wales with local or structure plans under the pre-1996 system as well as those with UDPs under the pre-2004 system.
136.The 1994 Act made amendments to Part 2 of the 1990 Act to apply the provisions about UDPs to Wales, and to provide for transitional arrangements about the status of local and structure plans until authorities adopted UDPs. The last UDP in Wales was adopted in 2011, and therefore those transitional provisions are spent and can be repealed. The Act therefore omits:
Part 1A of Schedule 2 to the 1990 Act; and
section 20(2) and (3)(b) and (c) together with Parts 2 and 3 of Schedule 5 and paragraphs 16 and 17 of Schedule 17 to the 1994 Act.
137.The Planning and Compulsory Purchase Act 2004 (Commencement No 6, Transitional Provisions and Savings) Order 2005(4) brought into force provisions of the 2004 Act giving effect to LDPs and repealing Part 2 of the 1990 Act. The 2005 Order included provisions preserving the effect of existing plans during the transitional period before each local planning authority had adopted its LDP. Section 204 of the Planning Act 2008 made further transitional provisions to ensure that the blight notice procedure continued to apply to land affected by plans adopted under the previous systems. So far as they applied to areas that still had local or structure plans when the 2004 Act came into force, these transitional provisions are no longer needed; the Act amends the 2005 Order and section 204 of the Planning Act 2008 to remove them.
138.The Act also omits section 186 of the Planning Act 2008 (at paragraph 20(2) of this Schedule to the Act), which has never been brought into force. It relates to the powers of the High Court in relation to legal challenges to UDPs adopted under Part 2 of the 1990 Act. Legal challenges to UDPs would have to have been brought within a matter of weeks after their adoption, so any prospect of such a challenge had disappeared by 2012.
Part 5 – Energy policies in development plans
139.The aim of the Planning and Energy Act 2008 (‘the 2008 Act’), originally a Private Members Bill, was to encourage micro-generation and more energy efficient buildings, rather than to introduce a requirement for bodies to implement new obligations. The Law Commission considered whether such provisions should be set out in guidance “as they encourage and permit the inclusion of such policies, rather than to impose any stricter obligations on planning authorities.”(5)
140.Planning Policy Wales (which sets out the land use planning policies of the Welsh Government) states that these matters are specific considerations for the preparation of strategic development plan and a local development plan. Planning Policy Wales sets out the Welsh Government’s expectations in relation to planning authorities for:
setting policies for development to use energy from local renewable and low carbon sources;
including policies to set energy efficiency standards to exceed the requirements in building regulations for strategic development sites(6).
141.There is little difference in policy effect between the aims behind the 2008 Act and what is set out in Planning Policy Wales. However, planning authorities and corporate joint committees must have regard to the policies in Planning Policy Wales, so this places a greater requirement on them than the 2008 Act by requiring them to have regard to these matters in preparing their local development plans and strategic development plans.
142.Part 5 of this Schedule to the Act amends the 2008 Act so that it will no longer apply in relation to Wales and makes consequential amendments to the Planning (Wales) Act 2015 and the Local Government and Elections (Wales) Act 2021.
Part 6 – Offence of removal of soil without consent
143.The Agricultural Land (Removal of Surface Soil) Act 1953 (‘the 1953 Act’) was intended to tackle the problem of topsoil being stripped off agricultural land, for commercial gain, leaving the land unable to be used for further cultivation. Under section 1 it is an offence to remove more than five cubic yards (which is 3.822 cubic metres) of soil from agricultural land in any three-month period with a view to sale, but only where such an activity constitutes “development” under the Town and Country Planning Act 1990(7) (‘the 1990 Act’) and has not received planning permission. A person committing an offence under the 1953 Act can be prosecuted and, on summary conviction, punished by a fine of up to Level 3 or even by imprisonment(8) (see section 2), but a prosecution can only be brought with the consent of the Attorney-General or the Director of Public Prosecutions (see section 3)(9).
144.Where a person is undertaking development without planning permission, it can be dealt with by the relevant planning authority by undertaking enforcement action under the 1990 Act. Breaches of enforcement action can result in prosecution under the 1990 Act and conviction may result in an unlimited fine, but not imprisonment. Powers to quickly stop unauthorised development were originally introduced in the Town and Country Planning Act 1968, with effect from 1 January 1969. It is understood that very few, if any, prosecutions have been brought under the 1953 Act since 1969. Certainly, practice today is to tackle breaches of the requirements for planning permission through the 1990 Act.
145.As a result, the 1953 Act, so far as it applies in Wales, is no longer of any practical utility. The Act therefore disapplies the 1953 Act in relation to land in Wales.
Part 7 – Domestic Fire Safety (Wales) Measure 2011
146.The Domestic Fire Safety (Wales) Measure 2011 (‘the 2011 Measure’) provides that the Welsh Ministers may make automatic fire suppression systems – commonly referred to as sprinkler systems – compulsory in all new and converted residences.
147.Following consultation in 2012 on implementation of the 2011 Measure and the transfer of the system of building control (most notably the Building Regulations) to the Welsh Ministers, only section 1 of the 2011 Measure was brought into force(10). The fact that the enforcement provisions of the Measure have not been brought into force mean that, as things stand, it has no practical effect. Section 1 was only brought into force to a limited extent, and does not apply to a range of buildings, including listed buildings, buildings in conservation areas, and buildings with a planned time of use of two years or less.(11)
148.Section 1(3)(b) of the 2011 Measure states that it does not apply “if building regulations imposing requirements as to the provision of automatic fire suppression systems apply to that work, or would apply but for a direction under section 8 of the [Building Act 1984] dispensing with such requirements”. Regulation 37A of the Building Regulations 2010 requires that automatic fire suppression systems are provided in certain buildings while section 6 of the 2011 Measure sets out the residences to which it applies.
149.In practice, the requirements around the installation of fire suppression systems are set out in, and enforced through, the Building Regulations. Paragraph 26 of this Schedule to the Act therefore repeals the 2011 Measure in full.
Part 8 – Reorganisation of local government
150.All 22 Welsh councils are unitary authorities as a result of the Local Government (Wales) Act 1994 (‘the 1994 Act’) that abolished the eight local government counties and 37 districts that had been formed in 1974.
151.The Act deals with four matters associated with the reorganisation of local government in Wales:
Social services committees - section 101(10A) of the Local Government Act 1972 (‘the 1972 Act’), which made provision in relation to social services committees, cross-refers to a provision that was repealed by the Children's Act 2004 and should also have been repealed at that time. The Act therefore omits section 101(10A) of the 1972 Act, and the provision in the 1994 Act that originally inserted subsection (10A) into section 101 of the 1972 Act.
Residuary Body for Wales – the 1994 Act established the Residuary Body for Wales to hold the assets of abolished authorities that could not easily be transferred to a new authority as part of the 1994 Act reorganisation of local government in Wales. The Residuary Body disposed of those assets by 1998, and the Body itself has since been abolished(12), so these provisions are now spent. Paragraph 29 of this Schedule to the Act omits the spent provisions in the 1994 Act and paragraphs 30 to 37 omits references to the Residuary Body in the:
Rent Act 1977;
Local Government (Miscellaneous Provisions) Act 1982;
Housing Act 1988;
Town and Country Planning Act 1990;
Local Government Finance Act 1992;
Environment Act 1995;
Housing Act 1996; and the
Government of Wales Act 1998.
Transitional provision under the 1994 Act – spent transitional provisions in the 1994 Act and an amendment of those provision in the Local Government Act 2003 are omitted.
Decentralisation schemes and joint working – under Part 3 of the 1994 Act new principal councils could establish area committees to discharge functions of the council by way of a ‘decentralisation scheme’, and the Secretary of State could give certain directions relating to joint working arrangements and related information to principal councils. Applications for decentralisation schemes had to be made by 1 January 1996 (and approved by the Secretary of State no later than 1 July 1996), and joint working directions could only be made by the Secretary of State until 31 March 1999 – so each of these arrangements is now spent.(13) The Act therefore omits Part 3 of the 1994 Act and makes a consequential amendment to the Education Act 1996.
Part 9 – Statements of special educational needs
152.Section 5 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (‘the 1986 Act’) makes provision in respect of people with a disability leaving full-time education under the age of nineteen years and eight months where they have previously received a statement of special educational needs (which was, but no longer is, the system in Wales) or an education, health and care plan (which is the system in England).
153.Section 5 of the 1986 Act no longer has any substantive effect in Wales. The Additional Learning Needs and Education Tribunal (Wales) Act 2018 effectively repealed, in relation to Wales, the provisions in the Education Act 1996 concerning statements of special educational needs, and replaced them with a new system. There are no longer any people in Wales with statements under the 1996 Act, or under older systems set out in the Education Acts of 1981 and 1993. As a result, the various references in section 5 to statements of special education needs do not have any meaningful effect in Wales.
154.The assessment system in section 5 has also been superseded by other legal developments in Wales. That section requires a local authority that has been notified about the person’s departure from full-time education to assess the person’s need for services from the authority under “the welfare enactments”. Section 5 also contains notification duties. In Wales, “
155.The 2014 Act places duties on local authorities to assess the needs of adults and children where it appears those adults or children may need care and support. Section 19 of that Act contains the duty relating to adults and section 21 contains the duty relating to children.
156.These assessment duties apply more widely than the assessment duties in section 5 of the 1986 Act, as they are not limited to persons with disabilities who have received a statement of special needs and who are under a certain age. The special position of children with disabilities is specifically recognised by section 21 of the 2014 Act, as an assessment under that section must start from the presumption that children with disabilities need care and support (see section 21(7)). The Code of Practice relating to assessing the needs of individuals under the 2014 Act(14) sets out a process for assessing the needs of an individual for care and support and a process of review and re-assessment that will apply to assessments.
157.When an assessment of a person’s needs has been carried out under section 19 or section 21 of the 2014 Act, Part 4 of that Act and regulations made under it govern the next steps. Part 6 of the 2014 Act deals with the duties of a local authority towards a child who is in its care or accommodated by it.
158.The Act amends section 5 of the 1986 Act to expressly restrict its application to England and remove redundant references to the National Assembly, and makes related consequential amendments.
Part 10 – National Park Planning Boards
159.There are three National Parks in Wales: Brecon Beacons (Bannau Brycheiniog), Pembrokeshire Coast (Arfordir Penfro) and Snowdonia (Eryri). These, and the 10 in England, are designated under Part 2 of the National Parks and Access to the Countryside Act 1949. Since the National Parks in Wales were first designated in the 1950s, there have been several changes to the administrative arrangements for managing the Parks, including those made by the Countryside Act 1968, Local Government Act 1972, Local Government (Wales) Act 1994 and the Environment Act 1995 (‘the 1995 Act’). Before the changes made by the 1995 Act, each National Park in Wales had a National Park Committee(15). There were also powers to establish joint planning boards or special planning boards for National Parks(16), but those powers had not been used in Wales.
160.Section 63 of the 1995 Act gave the Secretary of State the power to make an order establishing a National Park authority where there was an existing authority for a National Park or in connection with designating an area as a new National Park. An existing authority in this context meant a joint or special planning board or a National Park Committee. The National Park Authorities (Wales) Order 1995(17) (‘the 1995 Order’) established National Park authorities for the Parks in Wales with effect from 23 November 1995. The authorities assumed their substantive functions, and the National Park Committees ceased to exist on 1 April 1996.
161.Section 64 of the 1995 Act, which only applies to Wales, is mainly about the transition from joint or special planning boards to National Park authorities. Subsections (1) to (5) dealt with the situation where a board had already been established for a National Park, but they never had any effect because no such boards were ever established in Wales. The Act therefore repeals these provisions, as they are redundant.
162.Section 64(6) and (7) dealt with the situation where steps had been taken towards establishing a board but had not been concluded, and where a National Park authority was instead to be established before 31 March 1997. The Act therefore repeals those subsections, since they would have applied to things done during a period that ended long ago and are now spent.
163.Subsection (9) of section 64 defined terms used in subsections (1) to (7), and section 75(2) made provision for orders under section 64. The Act therefore also repeals these provisions, which become obsolete on the repeal of the substantive powers.
164.In section 65 of the 1995 Act, subsection (3) makes provision about the functions of a National Park authority during any period between the authority being established and becoming a local planning authority. Subsection (4) modified subsection (3) for Wales, but only in relation to things done before 1 April 1996. Subsection (4) is now spent and is also repealed.
165.The definition of an “existing authority” in section 79(1) contains references to powers to establish joint and special planning boards for National Parks in Wales that were never used and are no longer available. The Act therefore repeals these provisions as they are redundant.
166.In Schedule 7 to the 1995 Act, paragraph 14(2)(b) and 14(4) refer to things done by a joint or special planning board for a National Park in Wales. The Act repeals these provisions as they never had any effect and can no longer have any effect.
167.In Schedule 10 to the 1995 Act, paragraph 30 amended a provision in Schedule 8 to the Electricity Act 1989. That provision was also amended by paragraph 22 of Schedule 6 to the Local Government (Wales) Act 1994 (‘the 1994 amendment’), which was not in force when the 1995 Act was enacted. Paragraph 30 of Schedule 10 therefore contained different amendments for the situations where it came into force before, after or at the same time as the 1994 amendment. In fact, paragraph 30 came into force before the 1994 amendment, so the amendments for the other situations were never needed(18). The Act therefore repeals these provisions, contained in paragraph 30(4) and (5) of Schedule 10.
168.In Schedule 23 to the 1995 Act, paragraphs 7, 11 and 15 were transitional provisions for cases where joint and special planning boards had been established for National Parks in Wales. Those paragraphs were not brought into force. The situation to which they applied never arose, and even if it had arisen the paragraphs would now be spent, so the Act repeals them.
Part 11 – Welsh Development Agency
169.The Welsh Development Agency (WDA) was established under the Welsh Development Agency Act 1975 and was responsible for encouraging business development and investment in Wales, clearing derelict land and encouraging the growth of local businesses. The Welsh Development Agency Act 1997 increased the financial limits of the WDA.
170.The WDA was abolished in 2006 and its functions were transferred to the Welsh Ministers(19) and the Welsh Government is now responsible for supporting and encouraging business development and investment in Wales.
171.The Welsh Development Agency Act 1997 is redundant, and therefore paragraph 48 of this Schedule to the Act repeals that Act.
172.The Industry Act 1979 (‘the 1979 Act’) raised the borrowing limits of the National Enterprise Board, the Scottish Development Agency and the WDA. Along with the WDA, the other two bodies have also ceased to exist. The 1979 Act has been repealed already insofar as it applies to the National Enterprise Board and the Scottish Development Agency. It remains unrepealed only in relation to the WDA. Since this body no longer exists, the 1979 Act is also now obsolete. Paragraph 46 of this Schedule to the Act therefore also repeals the 1979 Act.
173.The Act amends the Industry Act 1980, which was enacted to reduce the powers of the WDA, the Scottish Development Agency and the National Enterprise Board. These three bodies were to cease to hold shares in companies, in accordance with the (then) Government’s policy of shrinking the public sector. The provisions of the Industry Act 1980 repealed by the Act contain amendments of other enactments that are all now redundant.
174.The Act also (at paragraph 49) amends the Government of Wales Act 1998 (‘the 1998 Act’) in relation to the abolition of the WDA:
firstly, omitting redundant provisions from Part 1 of Schedule 14 to that Act that had amended the Welsh Development Agency Act 1975;
secondly, omitting spent provisions from Part 2 of Schedule 14 that amended other enactments in relation to the WDA.
Part 12 – Development Board for Rural Wales
175.Through the Development of Rural Wales Act 1976 (‘the 1976 Act’) it was intended that the economic and social wellbeing of the people of rural Wales would be promoted, particularly the welfare of mid-Wales. The 1976 Act established the Development Board for Rural Wales that, amongst other matters, took over the work of the Mid-Wales Development Corporation and the Development Commission.
176.Most of the provisions of the 1976 Act are already repealed (mostly by the 1998 Act’), leaving only sections 23, 26 and 35. As the Development Board for Rural Wales ceased to exist in 1998, these last remaining provisions are now spent. It therefore appears appropriate to remove them from the statute book, together with the provisions in the 1998 Act that abolished the Development Board.
177.Paragraph 50 of this Schedule therefore repeals the 1976 Act (which has the effect of repealing the last remaining provisions) and paragraph 51 amends the 1998 Act to:
omit sections 129(1), 130(1) and (3) to (5), 131(2) to (4) and section 133, which relate to the cessation of the Development Board;
amend section 154 to remove the redundant references to sections 130 and 133; and
omit now spent amendments made by the 1998 Act to the Parliamentary Commissioner Act 1967 and the 1976 Act.
Part 13 – Land Authority for Wales
178.The Land Authority for Wales was established in 1976 under the Common Land Act 1975. Its role was to buy land on behalf of the UK Government for industrial or other forms of development to encourage economic growth. Its functions for Wales were transferred to the WDA in 1998 and then it was abolished. The functions of the WDA were subsequently transferred to the Welsh Ministers following the abolition of the WDA.
179.The transfer of its functions and the cessation of the operation of the Land Authority for Wales was achieved through the 1998 Act. Some of the provisions in the 1998 Act are no longer required. Therefore paragraph 52 of Schedule 1 amends that Act because:
section 134 ended the operation of the Land Authority and as that has now happened this provision is spent and is therefore omitted;
section 135(1) describes a connection between sections 134 and 135. The Act omits this as it has the potential to mislead once section 134 is omitted;
section 136 made provision about the transfer of staff, property, etc. from the Land Authority for Wales to the WDA. Now that the Land Authority for Wales and WDA have both ceased to exist, most of the section is spent. The Act therefore omits section 136(1) and (3) to (5). Section 136(2) is retained as it provides assistance in establishing evidence of property transfers;
section 137 deals with savings and transitional provisions. The cross-reference to section 134 in subsection (1) is omitted as the Act is repealing section 134, and subsections (2) to (4) are spent transitional provisions that can now also be omitted;
section 139 provided a power to the Secretary of State to direct the Land Authority ceased to exist. This power has been exercised(20) and therefore this section is spent. It is omitted by the Act; and
the Secretary of State exercised the power under section 139 (Abolition etc.) to direct that the Land Authority for Wales ceased to exist so this section is spent and is omitted. The references to section 139(3) in section 154 of the 1998 Act (which makes provision regarding how orders and directions under the Act may be exercised) are also omitted, as are references to powers in section 136(4).
Part 14 – Amendment of Schedule 9 to the Wildlife and Countryside Act 1981
180.Invasive non-native species are generally managed using powers under the Wildlife and Countryside Act 1981 (‘the 1981 Act’). Schedule 9 to the 1981 Act lists certain plant and animal invasive non-native species that have become established in the wild in Great Britain, but that the law seeks to prevent spreading further. Section 14(1) of the 1981 Act makes it an offence to release or allow to escape into the wild any animal that is not ordinarily resident in Great Britain and is not a regular visitor to Great Britain in a wild state, or that is listed in Part 1, 1A or 1B of Schedule 9 to the 1981 Act. It is also an offence under section 14(2) to plant or otherwise cause to grow in the wild any plant listed in Part 2 of Schedule 9 to the 1981 Act.
181.Additional powers are available under the Invasive Alien Species Regulation 1143/2014 (the ‘retained regulation’, i.e. the retained EU law version of Regulation (EU) No 1143/2014 of the European Parliament and of the Council of 22 October 2014 on the prevention and management of the introduction and spread of invasive alien species) and the Invasive Alien Species (Enforcement and Permitting) Order 2019 (S.I. 2019/527) (‘the 2019 Order’) to help manage invasive species that are considered higher risk (known as “species of Union concern” under the EU Regulation or “species of special concern” under the retained regulation).
182.The retained regulation imposes strict restrictions on anything in the list of “species of special concern”. These are species of animals and plants whose potential adverse impacts across Great Britain are such that concerted action is required. The restrictions on these species mean they cannot be intentionally imported, kept, bred, transported, sold, or released into the environment. The 2019 Order provides for the enforcement regime for the retained regulation.
183.Some invasive non-native species formerly controlled under the 1981 Act were removed in 2019 from Schedule 9 to be regulated under the Invasive Alien Species Regulation. This was for the purposes of consistency, preventing overlap of similar offences and reducing the potential for confusion amongst users of the legislation. Schedule 4 to the 2019 Order included provision to remove species from Schedule 9 to the 1981 Act that are also species of special concern. The offences within section 14 of 1981 Act relating to release or allowing the escape of these species into the wild were replicated in the 2019 Order to ensure there was no reduction in protection.
184.In July 2019 Commission Implementing Regulation (EU) 2019/1262 updated the list of species of Union concern including the addition of three species that are also listed in Schedule 9 to the 1981 Act (New Zealand flatworm (arthurdendyus triangulatus, which is also known as artiposthia triangulata), pumpkinseed (lepomis gibbosus) and giant salvinia (salvinia molesta)).
185.In 2021 Defra introduced the Wildlife and Countryside Act 1981 (Variation of Schedule 9) (England) Order 2021 (S.I. 2021/236) (‘the 2021 Order’) to remove these three species from Schedule 9 to the 1981 Act in relation to England, so that they were only regulated under the Invasive Alien Species Regulation. No similar tidying up provision has been made in relation to Wales to date, which means these species are listed in Schedule 9 to the 1981 Act and regulated by the Invasive Alien Species Regulation.
186.Paragraph 53 of this Schedule to the Act now amends Schedule 9 to the 1981 Act to remove the three species in relation to Wales.
Part 15 – Unrecorded public rights of way
187.The Countryside and Rights of Way Act 2000 (‘the 2000 Act’) was enacted, in part, to improve public access to the open countryside and registered common land while recognising the legitimate interests of those who own and manage the land concerned, including by amending the law relating to rights of way.
188.Sections 53 to 56 of the 2000 Act have never been commenced by the Welsh Ministers and are therefore not in force in relation to Wales. They prescribe a cut-off date (1 January 2026) for the recording on definitive maps(21) of footpaths and bridleways created before 1949 (with certain exceptions). The provisions provide that public rights of way over such footpaths and bridleways that have not been recorded by the cut-off date would be extinguished. Section 56 of the 2000 Act provides that the cut-off date can be extended in relation to Wales by regulations made by the Welsh Ministers. No such regulations have been made by the Welsh Ministers as sections 53 to 56 have never been brought into force.
189.The Wildlife and Countryside Act 1981 (‘the 1981 Act’) requires, among other things, that definitive maps and statements be kept under review. The surveying authority for an area may make, by order, such modifications to a definitive map and statement as it considers are required. If paragraph 4 of Schedule 5 to the 2000 Act were in force it would insert a new section 54A into the 1981 Act, and that section would prevent a surveying authority making an order after the cut-off date (1 January 2026) that modified a definitive map and statement for the purpose of recording a byway open to all traffic (known as a “
190.Since 2001 the Welsh Government has been implementing provisions under the 2000 Act, but certain provisions have yet to be implemented, particularly those that are no longer pertinent or considered in keeping with the Welsh Government’s priorities for access. These include provisions that are no longer necessary or are resource intensive for local authorities.
191.Paragraph 54 of this Schedule therefore amends sections 53, 54, 55 and 56 of the 2000 Act, so those provisions apply to land in England only. Therefore there will not be a cut-off date by which historic footpaths and bridleways in Wales must be included on definitive maps, nor for the extinguishment of certain rights of way in Wales that have not been claimed by the cut-off date. This is the current position in law (as the 2000 Act provisions have not been commenced) and the change made by this Act removes the prospect of the current position changing without new legislative provision being made.
192.Paragraph 55 of this Schedule amends paragraph 4 of Schedule 5 to the 2000 Act, so that new section 54A of the 1981 Act (if brought into force) would apply to land in England only. Therefore, there will not be a cut-off date by which BOATs in Wales must be included on definitive maps and statements.
Part 16 – Miscellaneous amendments relating to the Government of Wales Act 1998
193.The 1998 Act provided for the establishment of the National Assembly for Wales. Unlike the devolution arrangements put in place at the same time in Scotland and Northern Ireland, the 1998 Act did not provide for a separation between the legislature and the executive. Instead, the National Assembly was established as a single corporate body, which exercised its functions on behalf of the Crown. This meant that one organisation, the National Assembly, was responsible for discharging both legislative and executive functions.
194.The Assembly assumed the statutory powers and duties that the Secretary of State for Wales had previously exercised. Provision was made for Orders in Council to transfer these mostly executive responsibilities to the Assembly and subsequent Acts of Parliament conferred additional powers on the Assembly.
195.The Assembly could only make secondary legislation, such as orders and regulations, in devolved areas. It could not make primary legislation for Wales, which remained the UK Parliament’s responsibility in both devolved and reserved areas.
196.In June 2005, the Secretary of State for Wales published a White Paper, Better Governance for Wales(22), which included proposals to effect a formal separation between the executive and legislative branches of the Assembly, reform existing electoral arrangements and increase the legislative powers of the Assembly. The 2006 Act gave effect to the broad policy objectives contained in the White Paper proposals. Although it repealed the majority of the 1998 Act, certain provisions continued to be in force.
197.As noted elsewhere in these Explanatory Notes the Act makes several changes to the remaining provisions of the 1998 Act. Part 16 of this Schedule to the Act also makes a number of miscellaneous amendments to the 1998 Act to remove references to obsolete bodies, remove spent transitional provisions, update certain references to other bodies and remove certain amendments that the 1998 Act made to other enactments because these are no longer needed as a result of repeals and substitutions by later Acts. In particular:
Reform of other Welsh public bodies:
section 28 of the 1998 Act provides a power to the Welsh Ministers to order the transfer of one or more of the functions of bodies listed in Schedule 4 to the 1998 Act. Section 28 is therefore amended to remove reference to Part 2 of Schedule 4, because advisory committees for Wales were provided for by the National Health Service Act 1977, which was repealed with effect from 1 March 2007. Part 2 of Schedule 4 itself is also omitted, for the same reason.
Part 1 of Schedule 4 to the 1998 Act is amended to omit public bodies that no longer exist or, in the case of the reference to the Care Council for Wales, to reflect the change in name of that body to Social Care Wales(23).
Schedule 10 to the 1998 Act makes consequential amendments to the Health Service Commissioners Act 1993. Most of these amendments have been superseded, and the Act will omit them.
Schedule 12 to the 1998 Act deals with minor and consequential amendments to legislation relating to the Public Audit (Wales) Act 2004:
the amendment by the Act to paragraph 17 omits provision amending the Local Government Act 1974 because the amended provision in that Act was repealed by the Public Services Ombudsman (Wales) Act 2005;
the words inserted by paragraph 22 into section 134(3) of the Mental Health Act 1983 were substituted by Public Services Ombudsman (Wales) Act 2005, and paragraphs 21 and 22 are therefore omitted;
similarly, the words inserted by paragraph 36(b) were substituted by the Public Services Ombudsman (Wales) Act 2005 and can now be omitted.
Schedule 16 to the 1998 Act deals with amendments that arise in consequence of the abolition of Housing for Wales. The Act omits:
paragraph 1 because it amends the Friendly and Industrial and Provident Societies Act 1968, which was repealed by the Co-operative and Community Benefit Societies Act 2014;
paragraph 12 because it amends section 157(4) of the Housing Act 1985 but this subsection was omitted by virtue of the Housing Act 2004;
paragraphs 56 and 57 because they amend the Income and Corporation Taxes Act 1988. The relevant provisions of the 1988 Act were repealed by the Corporation Tax Act 2010;
paragraph 68 because it amends the Housing Act 1988 but the relevant provision was omitted by the Regulation of Registered Social Landlords (Wales) Act 2018;
paragraph 84 because it amends section 9 of the Housing Act 1996 but this was substituted by the Regulation of Registered Social Landlords (Wales) Act 2018;
paragraph 96 because it amends various provisions in Schedule 1 to the Housing Act 1996, which have since been substituted or repealed.
paragraphs 98 to 100 because they amend the Audit Commission Act 1998. That Act was repealed by the Local Audit and Accountability Act 2014.
198.Paragraph 57 of this Schedule to the Act also repeals certain paragraphs in Schedule 10 to the 2006 Act. Those paragraphs amended the 1998 Act to provide for the transfer of certain functions in relation to forestry and the environment from the (then) National Assembly to the Welsh Ministers. Those functions subsequently fell away upon the creation of the Natural Resources Body for Wales, and the underlying provisions of the 1998 Act were repealed(24). The provisions being omitted by the Act are therefore spent.
Part 17 – Transitional provision relating to the Government of Wales Act 2006
199.Under the 2006 Act, the powers and functions of the Assembly, including the power to make subordinate legislation, were transferred to the Welsh Ministers, who became accountable to the Assembly.
200.The 2006 Act created a system for granting the Assembly the ability to pass Assembly Measures in 20 defined areas through Legislative Competence Orders, which required the consent of both Houses of Parliament and the Secretary of State for Wales.
201.It also granted the Assembly the power to make Acts, subject to a referendum. This referendum was held in 2011 and, following the affirmative referendum result, the Assembly assumed new powers to pass primary legislation (Acts of the National Assembly for Wales) without recourse to Parliament in specified areas.
202.The Wales Act 2014 transferred further powers to the National Assembly for Wales, and the subsequent Wales Act 2017 made further changes to the 2006 Act and the Wales Act 2014, notably moving from a “conferred” to a “reserved” model of devolution in Wales. On 6 May 2020 the National Assembly for Wales became “Senedd Cymru” or “the Welsh Parliament” following changes introduced by section 2 of the Senedd and Elections (Wales) Act 2020.
203.Over and above the amendments to the 2006 Act that have already been set out in these Explanatory Notes, Part 16 of this Schedule to the Act makes changes to Schedule 11 to the 2006 Act. Schedule 11 contains transitional provisions to cover the transfer in May 2007, when the first Assembly election took place after the 2006 Act, from the legal and governmental regime created by the 1998 Act to the regime set out in the 2006 Act. It sets out detailed provisions dealing with the arrangements necessary to ensure an effective transition. As the transition has happened a number of those provisions are no longer required, and the Act will remove these from the statute book.
204.The amendments to Schedule 11 are to:
Paragraphs 3 to 7 (dealing with elections) –
paragraph 3 provides for the date of the first meeting of the National Assembly returned after the 2007 election to be set by order made by the ‘old Assembly’ (which had been constituted under the 1998 Act). This is spent now that the first meeting after the 2007 election has taken place;
paragraph 4 provides for the date of the first ordinary Welsh general election held after 2007 to be calculated by reference to the 2007 election, which had the effect that the next general election would be held in 2011. This is spent now that the 2011 election has taken place;
paragraphs 5 and 6 are also spent because they amended sections 5 and 7 of the 1998 Act, which were both repealed by Schedule 12 to the 2006 Act;
paragraph 7 is spent because it modified section 11 of the 2006 Act until the first general election and related to Senedd by-elections before the 2011 election.
Paragraph 9, which made transitional provision about the term of office of Assembly Members returned at the 2007 election and is therefore now spent.
Paragraph 11 disqualifies a Lord of Appeal in Ordinary from being a member of the Senedd. Lords of Appeal in Ordinary, or Law Lords, were judges appointed under the now-repealed Appellate Jurisdiction Act 1876 to the Appellate Committee of the House of Lords. They exercised the House of Lords’ judicial functions, which included acting as the highest court of appeal for most domestic matters. The House of Lords lost its judicial functions on the establishment of the Supreme Court of the United Kingdom in October 2009. Lords of Appeal in Ordinary then in office automatically became judges of the Supreme Court of the United Kingdom(25). Section 16 of the 2006 Act (as amended by the Senedd and Elections (Wales) Act 2020) disqualifies the office holders set out in the table in Part 2 of Schedule 1A to the 2006 Act from being a Member of the Senedd and from being a candidate to be a Member of the Senedd. These include the holders of certain judicial offices including a Justice of the Supreme Court. Paragraph 11 is therefore no longer required.
Paragraphs 14 to 19 – these are spent provisions relating to arrangements following the 2007 general election to the National Assembly, and the ‘initial period’. That is, the period beginning at the start of polling day 2007 (when all members of the existing Assembly, including Assembly Ministers, would normally cease to be able to exercise those functions) and ending with the appointment of a First Minister.
Paragraph 14 ensured that the Assembly (constituted under the 2006 Act) was responsible for publication of information about remuneration of Assembly members in relation to the financial year 2006-07 (i.e. relating to the last year of the ‘old Assembly’ and its members).
Paragraph 15 ensured that a determination made under section 34A of the 1998 Act, which was in force immediately before the repeal of that section, continued to have effect in relation to the Assembly.
Paragraph 16 ensured that the holding of the 2007 election triggered the duty of the Assembly to elect a Presiding Officer and Deputy Presiding Officer.
Paragraph 17 ensured that the person who was the Clerk to the ‘old’ Assembly became the Clerk of the Assembly for the purpose of functions under the 2006 Act.
Paragraph 18 provided that paragraphs 5 and 6 of Schedule 2 (which authorise the Assembly Commission to promote awareness of the election system and devolved government either directly or by financial support for the Electoral Commission) have effect until the end of the initial period as if the reference to the Assembly Commission were a reference to the ‘old Assembly’.
Paragraph 19 ensured that, until the end of the initial period, if Her Majesty made an Order in Council under paragraph 12(1) of Schedule 2 providing for the Assembly Commission to be treated as a Crown body for the purposes of an enactment, the statutory instrument containing the Order may be annulled only by either House of Parliament.
Paragraphs 22 to 25, which ensured that governmental functions of the ‘old Assembly’ could continue to be exercised during the initial period. These are spent because they make provision about membership and functions of the Assembly constituted by the 1998 Act during “the initial period”, which ended on 25 May 2007.
Paragraph 28(1), which provided for the continuation of powers conferred upon the “old Assembly” to implement certain European legislation. This is no longer required because of the European Union (Withdrawal) Act 2018.
Paragraph 29, which refers to the first nomination of the First Minister in respect of the Assembly term following the holding of the poll at the 2007 election. This provision is now spent.
Paragraphs 35(3) and 35(4), which deal with procedures for making subordinate legislation and are amended to remove references to subordinate legislation-making powers that have been repealed.
Paragraphs 50 and 51, which deal with the process for making Legislative Competence Orders. The power to make Legislative Competence Orders has been repealed.
Paragraphs 53, 53A and 53B, which are spent provisions relating to payments into the Welsh Consolidated Fund.
Paragraphs 54, 55, 56, 58, 59, 62 and 63, which contain modifications that apply only to the end of the initial period, which ended on 27 May 2007.
Paragraphs 60 and 61, which modify provisions in their application for only the financial year beginning on 1 April 2007, so they are spent.
Paragraphs 64, 64B, 64C, 64F and 64G, provisions relating to the Auditor General and Public Services Ombudsman for Wales, which are time-limited and spent.
Paragraph 65 makes provision necessary for the period before the coming into force of section 27(1) the Justice (Northern Ireland) Act 2002. This is spent because section 27 of that Act came into force on 12 April 2010.
Paragraphs 66 and 67 make provision necessary for the period before the coming into force of section 23(1) of the Constitutional Reform Act 2005. These are spent because section 23(1) of that Act came into force on 1 October 2009.
205.The Act also repeals paragraph 10 of Schedule 3 to the National Health Service (Consequential Provisions) Act 2006 because it applied only during the initial period, within the meaning of the 2006 Act, which ended on 25 May 2007. The provision is spent as the initial period has ended.
206.In consequence of the amendments made to Table 2 in paragraph 35 of Schedule 11, the Act also repeals paragraph (c) of paragraph 22 of the Schedule to Learning and Skills (Wales) Measure 2009.
Part 18 – Welsh Elections (Coronavirus) Act 2021
207.The Welsh Elections (Coronavirus) Act 2021 (‘the 2021 Act’) was enacted to provide for measures relating to protection against coronavirus to apply to Senedd Cymru elections and local government elections due to be held in 2021.
208.The 2021 Act made provision enabling the postponement of the Senedd Cymru general election scheduled for 6 May 2021. The procedure for postponement could only be activated by a proposal of the First Minister setting out that he considered the postponement to be necessary or expedient for reasons relating to coronavirus. The proposal would then be subject to various processes before it would be rejected or approved by the Senedd. These powers were not exercised, and the general election took place, as scheduled on 6 May 2021.
209.The 2021 Act also made provision enabling Senedd or local government by-elections for vacancies that might have arisen to be postponed up to (but not later than) 5 November 2021. Those powers were not exercised, and no by-elections were postponed under the Act.
210.The 2021 Act only applied to the ordinary general election held in 2021 and does not apply to any subsequent elections to Senedd Cymru. Further the Act does not permit by-elections to be postponed past 5 November 2021. Therefore, the Act is now entirely spent.
211.Paragraph 60 of this Schedule to the Act therefore repeals the 2021 Act in full.
Part 19 – Local Government Finance
212.Part 2 of the Local Government Finance (Wales) Act 2024 (‘the 2024 Act’) makes amendments to the Local Government Finance Act 1992 (‘the 1992 Act’) in relation to council tax.
213.As originally introduced into the Senedd the Bill (which became the 2024 Act) sought, at draft section 20, to change the arrangements in sections 12A, 12B and 38 of the 1992 Act for the publication of notices by council tax billing authorities. The 1992 Act requires billing authorities to publish notices relating to council tax levels or council tax premiums in newspapers. Section 20 of the Bill proposed replacing those requirements with a requirement to publish the same information electronically and make suitable alternative arrangements for access by individuals who are unable to access information online.
214.The Senedd did not agree with draft section 20, and at Stage 3 proceedings, voted to remove that draft section from the Bill.
215.Draft section 16 of the Bill provided an overview of Part 2, and at subsection (8) included an overview of draft section 20. When the Senedd omitted draft section 20 a consequential amendment to remove draft section 16(8) was not made. As such section 16(8) in the 2024 Act continues to refer to a provision not in the Act and amendments being made to the 1992 Act. This is unnecessary and does not benefit the reader of the 2024 Act or, more widely, support clarity of the law.
216.Paragraph 61 of this Schedule to the Act now omits section 16(8) of the 2024 Act and renumbers subsection (9) as subsection (8) to further avoid confusion for a reader of the 2024 Act.
Swansea (under S.I. 1981/757), 13 on the shores of the Milford Haven Waterway (S.I. 1984/443 and S.I. 1984/444 and the Lower Swansea Valley (S.I. 1985/137).
Law Commission (2020) Planning Law in Wales (Law Com 383), at paragraph 6.13.
Welsh Government (2021) Planning Policy Wales (ed 11), paragraphs 5.9.11 and 5.8.5 respectively
Originally it was the Town and Country Planning Act 1947, but this was subsequently amended to the 1990 Act by the Planning (Consequential Amendments) Act 1990.
The Criminal Justice Act 2003 will amend the 1953 Act to abolish the liability to imprisonment (see paragraph 34 of Schedule 34 and Part 9 of Schedule 37 to that Act), but that amendment has not yet been brought into force.
The Law Commission recommended the abolition of the requirement for consent to be obtained for prosecution (see para 6.58 of Consents to Prosecution (1998) (Law Com 255). This recommendation has not yet been implemented.
This is in addition to regulation-making powers, etc. that were brought into force on the day after Royal Assent.
Art 2(3) of S.I. 2013/2727.
See the Residuary Body for Wales (Winding Up) Order 1998 (SI 1998/2859)
Equivalent arrangements are now provided for, in respect of Corporate Joint Committees, by the Local Government and Elections (Wales) Act 2021.
Welsh Government (2015) Social Services and Well-being (Wales) Act. Part 3 Code of Practice (assessing the needs of individuals).
Established under paragraph 5 of Schedule 17 to the Local Government Act 1972.
In paragraphs 1 to 3A of Schedule 17 to the Local Government Act 1972 and section 2 of the Town and Country Planning Act 1990.
Paragraph 30 was brought into force by article 2(1) of SI 1995/2950 on 23 November 1995; the 1994 amendment was brought into force by article 3 of SI 1996/396 on 1 April 1996.
This transfer was effected by the Welsh Development Agency (Transfer of Functions to the National Assembly for Wales and Abolition) Order 2005 (SI 2005/3226), and subsequently to the Welsh Ministers through the Government of Wales Act 2006
see the Land Authority for Wales (Abolition) Order 1999 (SI 1999/372)
Surveying authorities (in Wales this means the 22 county and county borough councils) are required to prepare and keep under review their definitive map and statement(s). These form the legal record of public rights of way in their area. For more information on definitive maps and statements see Natural Resources Wales / Definitive Map and StatementBack [19]
Section 67(1) of the Regulation and Inspection of Social Care (Wales) Act 2016 provides that section 54 of the Care Standards Act 2000 is repealed. Section 67(2) provides that the body corporate called the Care Council for Wales (established by section 54) is to continue in existence; section 67(3) provides that it is to be renamed, and is to be known as, Social Care Wales.
See the Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755) and the Natural Resources Body for Wales (Consequential Provision) Order 2013 (S.I. 2013/1821)
see section 24 of the Constitutional Reform Act 2005
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