Jones v Wrexham County Borough Council & Ors

Factual and Procedural Background

This appeal concerns the interpretation of section 67 of the Planning and Compulsory Purchase Act 2004 ("PCPA 2004") in Wales, specifically whether a local planning authority ("LPA") is under a duty or merely has a power to adopt a local development plan ("LDP") if recommended by the examining Inspector.

In February 2005, the Defendant adopted a Unitary Development Plan intended to cover 1996-2011. Preparation of a new LDP began in 2012, with public consultations in 2016 and 2018. The Defendant submitted the draft LDP for independent examination in April 2019, and Inspectors reported in February 2023 recommending adoption with modifications.

Despite legal advice that the Defendant was obliged to adopt the LDP as recommended, the Defendant's Full Council resolved by a narrow majority not to adopt the plan in April 2023. Developers with interests in sites allocated in the recommended LDP challenged this decision by judicial review, seeking to quash the decision, declare the failure to adopt unlawful, and compel adoption.

The Defendant reconsidered in June 2023 but again resolved not to adopt the plan. The developers amended their claim to include this second decision. The Defendant and Welsh Ministers did not oppose the claim. The High Court allowed the claim in November 2023, quashing both decisions and directing reconsideration, stating that only a resolution adopting the LDP as modified would comply with the court's judgment.

Following this, the Defendant's Full Council adopted the LDP in December 2023 under advice that failure to do so could result in contempt of court. The Appellant, a member and political leader within the Defendant, was later joined to the proceedings and granted permission to appeal.

The Appellant challenges the adoption of the LDP under section 113 of the PCPA 2004, with the High Court granting permission but staying proceedings pending this appeal.

Legal Issues Presented

1. Does section 67 of the PCPA 2004 impose a duty on a local planning authority in Wales to adopt a local development plan if the examining Inspector recommends adoption?
2. Alternatively, does section 67 confer only a discretionary power on the local planning authority to adopt the plan in accordance with the Inspector's recommendations?
3. How should the statutory scheme governing preparation, examination, modification, withdrawal, and adoption of LDPs in Wales be interpreted in relation to the authority's obligation or discretion?
4. What is the effect of related statutory provisions, including sections 62, 63, 64, 65, 66, 66A, 71 of the PCPA 2004 and the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005, on the interpretation of section 67?
5. How do the Welsh statutory provisions compare with the equivalent English provisions regarding the adoption of development plan documents ("DPDs")?

Arguments of the Parties

Appellant's Arguments

• Section 67(1) and (2) confer a discretionary power on the LPA to adopt the LDP but do not impose a duty to do so.
• The term "may" in section 67 indicates discretion rather than obligation.
• If Parliament had intended to impose a duty, it would have used the word "must" rather than "may".
• The Inspector's recommendations under section 64(7) are advisory and not binding on the LPA.
• The statutory scheme as a whole, including the provisions allowing withdrawal and Ministerial intervention, supports a discretionary approach.
• Regulation 25(1) of the 2005 Regulations imposes a time limit for adoption decisions but does not create a duty to adopt.
• The Welsh Ministers retain powers to intervene and adopt plans if the LPA fails to do so, consistent with the LPA having discretion.

Respondents' Arguments

• Section 67(1) and (2) impose a duty on the LPA to adopt the LDP if the Inspector recommends adoption.
• The obligation to prepare a LDP under section 62(1) implies an obligation to adopt the plan.
• The LPA's power to withdraw the plan is significantly restricted after submission for examination, indicating an intention that the plan should be adopted if recommended.
• Section 67's use of "may" governs the form of adoption, not whether to adopt at all.
• Ministerial powers to intervene under sections 65 and 71 presuppose that the LPA has a duty to adopt the plan following examination.
• Failure to adopt would leave the plan in limbo, undermining the statutory scheme and public confidence.
• Regulation 25(1) of the 2005 Regulations supports the existence of a duty by imposing an eight-week time limit for adoption after receiving Inspector recommendations.
• Differences between Welsh and English legislation justify a duty in Wales but only a power in England.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the statutory framework governing local development plans in Wales, focusing on the language and context of section 67 of the PCPA 2004.

The court noted that section 67 uses the word "may" in relation to adoption, which ordinarily connotes discretion or power, not a duty. The court rejected the respondents' argument that an obligation to adopt should be implied despite this language.

The court examined the broader statutory scheme, including the duties to prepare plans (section 62), the independent examination process (section 64), the restrictions on withdrawal (sections 66 and 66A), and the powers of the Welsh Ministers to intervene and adopt plans (sections 65 and 71). It found that these provisions support the interpretation that the LPA has a conditional power to adopt, not a mandatory duty.

The court emphasized that the Inspector's recommendations under section 64 are advisory and do not compel the LPA to adopt the plan. The term "recommendation" indicates discretion for the LPA.

The court also considered the Town and Country Planning (Local Development Plan) (Wales) Regulations 2005, particularly regulation 25(1), which imposes an eight-week time limit for adoption after receipt of Inspector recommendations. The court found this regulation consistent with a power to adopt within a timeframe, not a duty to adopt.

The court compared the Welsh statutory regime with the English regime, noting that both initially conferred conditional powers to adopt plans. Changes in England introduced a more prescriptive approach but retained discretion. Differences between the regimes do not justify imposing a duty in Wales where the language and scheme indicate otherwise.

The court rejected the argument that the restrictions on withdrawal in Wales imply a duty to adopt, explaining that these restrictions serve to ensure proper examination and prevent premature withdrawal but do not mandate adoption.

Finally, the court rejected the respondents' reliance on explanatory notes and consultation documents as insufficient to override the clear statutory language.

Holding and Implications

The court's final ruling is to allow the appeal and dismiss the claim for judicial review.

Holding: Section 67 of the Planning and Compulsory Purchase Act 2004 confers a conditional power, not a duty, on a local planning authority in Wales to adopt a local development plan following an Inspector's recommendation. The LPA retains discretion whether or not to adopt the plan.

Implications: The decisions by the Defendant's Full Council on 19 April 2023 and 14 June 2023 not to adopt the LDP were not unlawful. The ruling clarifies that the statutory scheme allows LPAs in Wales to exercise discretion at the adoption stage despite Inspector recommendations. No new precedent is established beyond this interpretation, and the Welsh Ministers retain powers to intervene if necessary. The judgment preserves the democratic accountability of LPAs in the planning process.