Wrexham councillor wins appeal over High Court ruling which led to warnings it would be contempt if members of local authority did not adopt local plan

The Court of Appeal has ruled in favour of a Plaid Cymru councillor who challenged an order made by a High Court judge that Wrexham County Borough Council had no discretion but to adopt its local plan.

Mr Justice Eyre’s ruling had come in judicial review proceedings brought by a consortium of developers after the local authority had decided not to adopt its Local Development Plan 2013-2028 at meetings on 19 April and 14 June 2023.

In Jones v Wrexham County Borough Council & Ors [2024] EWCA Civ 1603, Lord Justice Holgate concluded that the Planning and Compulsory Purchase Act 2004 “does not impose a duty on a local planning authority in Wales to adopt a local development plan”, and that the resolutions passed by Wrexham in April and June 2023 were “not unlawful”.

In December 2023, Wrexham adopted its local development plan (LDP) following a warning from its monitoring officer that councillors could face prison if they defied a direction by Mr Justice Eyre to approve the plan.

The monitoring officer informed councillors that the judge could find the council in contempt of court if it disobeyed the order and that "as individual votes will be available ... then the court could make an order against those individuals".

Eyre J had found that the council's initial resolutions not to adopt were ultra vires and/or irrational on the basis of a mistaken belief in the existence of a discretion.

However, the Court of Appeal concluded last month that councillors did not have to adopt a LDP, and dismissed the six developers' judicial review case.

Outlining the background to the case, Lord Justice Holgate said on 31 January 2024 the appellant, who is a member of Wrexham and leader of one of the political parties in the council, applied to be added as a party to the proceedings, for permission to appeal and for an extension of time for filing the appellant's notice.

On 7 May 2024, Lewison LJ granted the application of Cllr Marc Jones to be joined as a party, permission to appeal and the necessary extension of time.

The appellant brought a challenge under s.113 of the Planning and Compulsory Purchase Act (PCPA 2004) to the adoption of the LDP. The High Court granted permission to bring the claim, but stayed the proceedings pending determination of the appeal.

Holgate LJ said: “Section 67 of the PCPA 2004 deals with the adoption of a LDP. In summary:

1. The local planning authority (LPA) "may" adopt a LDP as "originally prepared" if the examining Inspector makes a recommendation to that effect, that is with no modifications (s.67(1)); or
2. The LPA "may" adopt a LDP with modifications if the examining Inspector so recommends (s.67(2)).

“If the LDP is adopted it immediately becomes part of the statutory development plan for the purposes of s.38.”

The central issue in the appeal was whether s.67 confers a power, or imposes a duty, on a LPA to adopt the LDP if the Inspector recommends adoption.

The appellant contended that s.67(1) and (2) confer a power on the LPA - therefore it can decide whether or not to adopt the plan, but it may only adopt the plan in accordance with the recommendations of the Inspector.

Discussing the case, Holgate LJ said: “There are a number of reasons as to why the language of s.67 points to the LPA having a discretionary power whether to adopt a LDP, rather than being subject to a duty to do so.

“Section 67(1) and (2) sets out two conditional powers. First, the LPA may adopt the LDP as "originally prepared" (or in practice as submitted for examination) only if the Inspector so recommends. Second, the LPA may adopt the LDP with modifications, but only in the form as recommended by the Inspector to be modified.”

He added: “The word "may" in s.62(1) and (2) is not used in connection with the form in which a LPA may choose to adopt a LDP. On any view, s.67 does not allow a LPA to choose between the two forms for adoption of a LDP described in those subsections. Instead, those provisions are mandatory as to the form in which the LDP may be adopted, depending on what recommendation is made by the examining Inspector.

“Accordingly, Mr. Andrew Parkinson [counsel for Cllr Marc Jones] was correct to submit on behalf of the appellant that if Parliament had intended that the LPA should be under an obligation to adopt the plan, there is no reason why the word "must" could, indeed would, not have been used in s.67(1) and (2). Contrary to the respondents' case, s.67 is not an example of a duty coupled with a discretion as to how that duty may be performed.”

Considering the historical perspective, Holgate LJ observed: “It is common ground that under the regime which existed immediately before the PCPA 2004 was enacted, LPAs in both England and Wales had a discretion, not a duty to adopt development plans following examination. But the parties differ as to what happened thereafter.”

The appellant submitted that LPAs in both Wales and England continued to have a discretion to adopt development plans, notwithstanding various changes in the legislation.

However, the respondents submitted that the changes introduced by the PCPA 2004 (as originally enacted) had the effect of imposing a duty to adopt development plans on both Welsh and English LPAs.

They contended that the position in England was “altered” when Parliament made changes to the PCPA 2004 by the 2011 Act. English LPAs then gained the freedom to decide whether to adopt their development plans. The developers finally said that the position in Wales was reinforced by the 2015 Act.

Holgate LJ agreed with the appellant's analysis.

The Court of Appeal judge concluded: “The PCPA 2004 does not impose a duty on a LPA in Wales to adopt a LDP which, following the examination process, the Inspector has recommended for adoption. It follows that the resolutions passed by WCBC on 19 April 2023 and 14 June 2023 were not unlawful. I would therefore allow this appeal and dismiss the third to ninth respondents' claim for judicial review.”

Jonathan Baker LJ and The Senior President of Tribunals, Sir Keith Lindblom, agreed.

Richard Buxton Solicitors, which acted for Cllr Marc Jones, said the appellant was also seeking to have the developers repay the £100,000 paid by Wrexham “as there is no legal basis for them to retain the costs award since their judicial review was dismissed”.

The law firm added that it would provide a further update when there is an outcome to the related s. 113 case also lodged by Cllr Marc Jones to quash the adoption of the plan which had been stayed behind the Court of Appeal case.

Speaking last month after the judgment was handed down, Cllr Marc Jones said: “This is a landmark decision – it’s a major breakthrough in ensuring local councils are able to have the say in what happens in their communities. The arguments put forward by our opponents tried to say that we had no choice – that we had to vote for this flawed plan regardless of the damage it would do to Wrexham.

“The judgment, by the second highest court in Wales and England, is very clear – local councils in Wales do have a choice when it comes to adopting these plans. To have a vote with no choice is not democracy. Last year we saw three votes on the LDP where councillors were told they could go to jail or face fines for voting in a certain way. This was the legal advice councillors were given.” [emphasis in original]

Responding to the judgment, Cllr Hugh Jones, Wrexham Council’s Lead Member for Strategic Planning and Public Protection, said: “The council is now in receipt of the Lord Justices’ Court of Appeal Decision in relation to the adoption of the Wrexham Local Development Plan following extensive submissions from all parties. This judgment has implications for the council in both legal and operational terms and these are currently being given careful consideration.”

Lottie Winson