Long, R (on the application of) v Optimisation Developments Ltd

The power to repeal a local statutory provision under section 58(2)(d) of the Local Government (Wales) Act 1994 extends to provisions imposing duties as well as provisions conferring powers. The statutory expressions “obsolete”, “unnecessary” and “substantially superseded” involve evaluation and judgment. The court will intervene only for legal misdirection, irrationality or Wednesbury unreasonableness. A provision may be substantially superseded without a like-for-like replacement. It is sufficient that a modern statutory regime has replaced its practical legal function. In deciding whether to repeal, the relevant consequence is removal of the statutory obligation. The Minister need not determine the merits or practical consequences of the local authority’s later exercise of its powers.

The claimant sought judicial review of the Welsh Ministers’ decision to repeal section 28 of the Abergavenny Improvement Act 1854, insofar as affected by section 26, and of the Abergavenny Improvement Act 1854 (Repeal) Order 2012. Section 28 required a livestock market in Abergavenny, while section 50 of the Food Act 1984 gave local authorities a discretionary power to establish markets.

The claimant alleged legal error, irrationality, and failure to consider consultation responses concerning the possible closure of the market and its economic, social and environmental effects. Permission had initially been refused by Singh J but was granted on renewal by Beatson J. The central issues were whether the statutory criteria for repeal were met and what considerations the Welsh Ministers were required to take into account.

1. Application dismissed. The claimant’s proposed amendment to Ground 2 was refused.
2. Section 58(2)(d) of the Local Government (Wales) Act 1994 permits repeal of “any statutory provision”. Its scope therefore includes a provision imposing an obligation to hold a market, not merely one conferring a power.
3. The statutory words “obsolete”, “unnecessary” and “substantially superseded” are ordinary words. Their application involves evaluation of facts and the exercise of judgment. The court must ensure that the decision-maker has not misdirected himself as to their general meaning, but may interfere with the evaluation only where it is irrational or Wednesbury unreasonable.
4. The Welsh Ministers were entitled to conclude that the nineteenth-century requirement to hold a market at a particular location was obsolete and unnecessary. They were also entitled to find that the discretionary market-making powers in the Food Act 1984 substantially superseded the earlier provision. A like-for-like replacement was unnecessary.
5. The legal consequence of repeal was the removal of the Council’s obligation to hold a market at the specified location, leaving it with a power to establish a market elsewhere within its administrative area. That consequence was distinct from the consequences of any later decision by the Council about the market or redevelopment of the site.
6. The Welsh Ministers were not required to decide the planning merits of redevelopment, the location of a replacement market, or the practical consequences of the Council’s future exercise of its statutory power. Consultation responses addressing those matters did not become legally material considerations merely because they were submitted.

This was a first-instance judicial review. Permission was refused by Singh J on 7 June 2012 and granted on renewal by Beatson J on 25 July 2012.