Local plan review — Change to existing development plan system — Transitional provisions — Appellant council withdrawing emerging plan — Whether appellants entitled to withdraw plan — Whether transitional provisions requiring continuation of local plan process — Appeal allowed
The appellant council initiated the statutory process for reviewing their local plan under the provisions of Part II of the Town and Country Planning Act 1990. The respondents, which wished to promote housing development on certain land that was not allocated in the emerging local plan, sought to object to that plan at the public inquiry to be held pursuant to section 42 of the 1990 Act. In the meantime, the Planning and Compulsory Purchase Act 2004 came into force in September 2004. That Act replaced the local plan procedure with a process that required the preparation of local development documents (LDDs) as part of a local development framework. Schedule 8 to the 2004 Act set out certain transitional provisions governing the period until the Act came into force. In the instant case, para 10 of Schedule 8 applied, and provided that Part II of the 1990 Act would continue to apply until the 2004 Act was enacted.
The appellants subsequently decided to withdraw the emerging local plan and abandon the local plan process in favour of preparing LDDs. The respondents challenged that decision by way of judicial review, contending that the appellants’ decision had prevented them from exercising their statutory right to make objections to allocated housing sites and to promote their own site at an inquiry. They accepted, on the authority of Persimmon Homes (Thames Valley) Ltd) v North Hertfordshire District Council [2001] 1 WLR 2393, that the appellants had the power to abandon or withdraw an emerging local plan. However, they submitted that exceptional circumstances were necessary to justify the exercise of that power and argued that none arose in the present case. Allowing their claim, the judge held that the power could not be used to override provisions set out by parliament to deal with a particular situation, and that the transitional provisions, which required that the local plan process continue, should be followed unless there was a good reason to the contrary.
On appeal by the appellants, issues arose as to: (i) the scope of the recognised power to withdraw an emerging local plan; and (ii) the effect of the para 10 transitional provisions on the exercise of the appellants’ discretion in that regard.
Held: The appeal was allowed.
1. Persimmon Homes was authority for the proposition that the existence of a power to withdraw an emerging local plan was implicit in the scheme of the 1990 Act, being necessary to prevent absurdity, for example by a local plan having to be put through the costly statutory procedure, including a public inquiry, when the local authority knew that it would not be adopted. The appellants had had a discretion to withdraw the local plan review when and for the reasons that they did. They had acted in a way that was consistent with the planning objectives of the planning legislation, and had reached their decision after considering the arguments for and against withdrawal.
2. The transitional provisions applied only if the appellants continued with their local plan review. The scheme of Schedule 8 drew a line at the stage in the review procedure prescribed by section 42(2) of the 1990 Act, namely making copies of the revised plan available for inspection; if the local authority had not yet reached that stage, they could proceed no further and were obliged to discontinue the review process: see para 8 of Schedule 8. However, if, as here, they had published the revised local plan prior to the commencement date of Part 2 of the 2004 Act, but had not yet reached the inquiry stage, para 10 would apply. Paragraph 10 did not require the local authority to continue with the local plan review if they did not wish to do so, but it preserved during the transitional period the relevant provisions of the 1990 Act, namely sections 36 to 43, subject to the procedural modifications in para 10(2) to (5). Nothing in para 10 or any of the other transitional provisions expressly removed or modified the power of the appellants under the 1990 Act, as recognised in Persimmon Homes, to withdraw their local plan review. Indeed, para 10 ensured that the relevant provisions of the 1990 Act, including the implied power to withdraw, would continue in force during the transitional period.
Richard Drabble QC and James Maurici (instructed by the legal department of Wealden District Council) appeared for the appellants; Peter Village QC and Robert White (instructed by Harold Benjamin, of Hatfield) appeared for the respondents; Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the First Secretary of State as an intervener.
Sally Dobson, barrister
