Wealden District Council v Martin Grant Homes Ltd & Anor

The power of a local planning authority to withdraw an emerging local plan is a statutory discretion implicit in the scheme of the Town and Country Planning Act 1990. It is not confined to exceptional circumstances, but must be exercised rationally, reasonably and consistently with planning legislation. Transitional provisions in Schedule 8 to the Planning and Compulsory Purchase Act 2004 preserve the 1990 Act procedures for plans at the relevant stage. They do not compel continuation or remove the withdrawal power. Government Office communications about planning timetables, performance assessment and grant consequences are not improper merely because they may influence the authority.

Wealden District Council resolved to discontinue its statutory local plan review and concentrate resources on preparing a Local Development Framework under the Planning and Compulsory Purchase Act 2004. Martin Grant Homes Ltd and Taylor Woodrow Developments Ltd challenged the decision by judicial review.

Collins J quashed the decision, holding that the transitional provisions in Schedule 8 required the local plan process to continue and that the power recognised in Persimmon was unavailable. The Council appealed. The central issues were the scope of the withdrawal discretion and the effect of paragraph 10 of Schedule 8.

1. Disposition. The appeal was allowed. The order quashing the Council’s decision was set aside and the application for judicial review was dismissed.
2. Withdrawal power. The court held that the discretion to withdraw an emerging local plan is a statutory discretion implicit in the scheme and provisions of the Town and Country Planning Act 1990, rather than a common-law power. The reasoning in R (Persimmon Homes (Thames Valley) Limited) and Others v North Hertfordshire District Council and Another [2001] 1 WLR 2393 supported that conclusion. The power was implied to avoid absurdity, such as requiring completion of an expensive statutory process where the authority knew that the plan would not be adopted.
3. The discretion was not confined to exceptional or very special circumstances. It had to be exercised rationally and reasonably in the Wednesbury sense and consistently with the objectives of the planning legislation. The Council had considered a detailed officer’s report addressing both the reasons for withdrawal and its disadvantages.
4. Transitional provisions. Paragraph 10 of Schedule 8 to the Planning and Compulsory Purchase Act 2004 applied because the revised local plan had been published but the inquiry stage had not been reached. Paragraph 10 preserved the relevant provisions of Chapter 2 of Part II of the 1990 Act, subject to procedural modifications. It did not require the Council to continue with the review or expressly remove or restrict the implied power to withdraw before adoption. Once the Council withdrew the review, the transitional provisions ceased to apply to its situation. Collins J had therefore erred in treating them as determinative.
5. Other matters. The Government Office letters expressed legitimate concerns about the planning timetable and future certainty. References to the Council’s performance assessment and possible grant consequences were not improper. The court did not need to determine the challenge to the Council’s detailed reasons. It also left unresolved the separate question concerning the lifespan of a revised plan adopted during the transitional period, noting that section 38(5) might give precedence to a later policy.

• Administrative Court: Collins J quashed the Council’s decision to abandon or withdraw its emerging local plan review.
• Court of Appeal (Civil Division): On appeal, the court allowed the appeal, set aside the order below and dismissed the application for judicial review: [2005] EWCA Civ 1221.