Town and country planning – Local development plan – First respondent local authority deciding not to adopt local development plan contrary to recommendation by inspectors – High Court ruling first respondent required to adopt plan – Appellant council member appealing – Whether section 67 of Planning and Compulsory Purchase Act 2004 conferring power or imposing duty to adopt plan recommended by inspector – Appeal allowed
In February 2005, the first respondent local planning authority adopted the Wrexham Unitary Development Plan under the Town and Country Planning Act 1990, intended to cover the period 1996-2011.
In 2012, the first respondent began the preparation of a local development plan (LDP), including the assembly of an evidence base, the drafting of objectives and policies and the consideration of candidate sites for development. Public consultation was carried out in 2016 and 2018.
The LDP was submitted to the second respond ministers for independent examination and inspectors recommended the adoption of the LDP with modifications. On that basis, they considered that the plan would be “sound” and advised that it would meet the other requirements of section 64(5) of the Planning and Compulsory Purchase Act 2004.
However, various concerns were raised about the plan and the first respondent resolved not to adopt it. The third to ninth respondent developers applied for judicial review of that decision and the High Court held that the first respondent was required to adopt the plan. The judge concluded that the only decision which would be capable of being a decision in accordance with the judgment of the court would be the passage of a resolution adopting the LDP as modified: [2023] EWHC 3474 (Admin).
The appellant, who was a member of the first respondent and the leader of one of the political parties in the council, appealed.
Held: The appeal was allowed.
(1) Part 6 of the Planning and Compulsory Purchase Act 2004, which included section 67, was dedicated to Wales. It granted a discretion on local planning authorities in Wales to decide whether to adopt an LDP for their area upon receipt of the inspector’s report into the examination of the plan as other provisions provided for in England.
Section 67 dealt with the adoption of an LDP. The LPA “may” adopt an LDP as “originally prepared” if the examining inspector made a recommendation to that effect, ie, with no modifications (section 67(1)); or the LPA “may” adopt an LDP with modifications if the examining inspector so recommended (section 67(2)).
The central issue in this appeal was whether section 67 conferred a power or imposed a duty on an LPA to adopt the LDP if the inspector recommends adoption.
(2) The appellant contended that section 67(1) and (2) conferred a power on the LPA. It could decide whether or not to adopt the plan, but it might only adopt the plan in accordance with the recommendations of the inspector.
Despite the use of the word “may” in section 67(1) and (2), the question was whether section 67 and other relevant parts of the statutory code, read as a whole, had the effect of requiring an LPA in Wales to adopt an LDP if the inspector so recommended. The respondents did not suggest that the answer was to be found in section 67 itself. So, the question became whether there was a sufficient basis elsewhere in the legislation for implying such an obligation in section 67.
(3) According to its ordinary and natural meaning, the word “may” was apt to confer a discretion or power. But sometimes it might be inferred from the statutory scheme that a power was coupled with an implicit obligation to exercise that power, for example for the making of secondary legislation without which the purpose of the primary legislation would be undermined, or for the purposes of enforcing a right: see eg, Pelling v Families in Need Ltd [2001] EWCA Civ 1280; [2002] 2 All ER 440; Craies on Legislation (12th ed) paragraphs 12.2.2 to 12.2.5; and Bennion, Bailey and Norbury on Statutory Interpretation (8th ed) section 3.8.
Section 67, read as a whole, clearly indicated that the LPA was not under any obligation to adopt an LDP following independent examination. Notwithstanding a recommendation from the inspector that it should adopt the LDP, the authority might decide not to do so.
(4) It was common ground that under the regime pre-existing the 2004 Act, LPAs in England and Wales alike had a discretion whether to adopt the development plan they had prepared following receipt of the inspector’s report on the local plan inquiry into representations on that draft plan. If the government had intended in the 2004 Act to alter that power to a duty, it was surprising that it was never mentioned in any consultation document, or during the passage of the legislation, or in the Explanatory Notes. The absence of any such reference lent further support to the appellant’s interpretation of section 67: see Jepsen v Rakusen [2023] UKSC 9; [2023] EGLR 20.
(5) Contrary to the respondents’ argument, the Town and Country Planning (Local Development Plan) (Wales) Regulation 2005 did not make adoption mandatory.
Under regulation 25(1), the LPA had to adopt the LDP within eight weeks of receipt of the recommendations and reasons given by the person appointed to carry out the examination unless otherwise agreed in writing by the National Assembly.
Under regulation 25(2), as soon as practicable after the LPA adopted a LDP, amongst other things, it had to make the adopted plan available for inspection on its website. That was consistent with the LPA having a power rather than a duty to adopt the LDP.
Regulation 25(1) could be construed consistently with the 2004 Act. Adoption involved a decision by the LPA to exercise its power to adopt a LDP by resolution. The regulation meant that any decision to adopt, if that was what the LPA resolved to do, had to be made within the eight weeks’ time limit (or any extended time limit agreed with the second respondents).
(6) There was no ambiguity in the 2004 Act which conferred conditional powers on an LPA in Wales to adopt an LDP. It did not impose a duty to adopt an LDP which, following the examination process, the inspector had recommended for adoption. The 2005 Regulations could not be used to create an ambiguity where none existed.
It followed that the resolutions passed by the first respondent were not unlawful. Therefore, the appeal would be allowed and the third to ninth respondents’ claim for judicial review dismissed.
Andrew Parkinson and Barney McCay (instructed by Richard Buxton Solicitors) appeared for the appellant; Martin Carter (instructed by Legal Services, Wrexham County Borough Council) appeared for the first respondent; Timothy Corner KC (instructed by the Director of Legal Services for the Welsh Government) appeared for the second respondent; Morag Ellis KC and Charles Merrett (instructed by Gateley Legal) appeared for the third to sixth respondents; The seventh to ninth respondents did not appear and were not represented.
Eileen O’Grady, barrister
Click here to read a transcript of Jones v Wrexham County Borough Council and others
