BDW Trading Limited & Ors, R (on the application of) v Wrexham County Borough Council

A local planning authority may not decline to adopt a local development plan after an independent examination has recommended its adoption, with or without modifications. Although the legislation uses the expression “may adopt”, that language concerns the form of adoption available in the circumstances. Read in context, the statutory scheme necessarily implies a duty to adopt. Ministerial default powers do not remove that duty. A regulation governing the period for adoption may reinforce the interpretation, but need not be the source of the duty. A resolution refusing adoption is ultra vires and may also be irrational where it rests on the mistaken belief that the authority has a discretion to refuse adoption.

The claimants were developers with interests in land affected by Wrexham’s draft local development plan for 2013–2028. Following independent examination, the inspector recommended adoption of the plan with modifications. The Council considered the plan in April 2023 and again in June 2023, but resolved on each occasion not to adopt it. The Council did not contest the judicial review, although it did not consent to relief. Permission had been granted on the papers by HH Judge Jarman KC. The central issue was whether the statutory framework permitted the Council to refuse adoption, or required it to adopt the plan as modified.

1. Claim succeeded. The April and June resolutions refusing to adopt the local development plan were quashed. The Council was required to reconsider the matter in accordance with the judgment.
2. The court had to determine the meaning of the statutory scheme, not the merits or wisdom of the plan. Statutory interpretation required attention to the language of the legislation as a whole, the factual background and the legislative purpose. A necessary implication could be made only where required by the language in context and by the statutory purpose.
3. Under the Planning and Compulsory Purchase Act 2004, the scheme required preparation of a plan, independent examination and consideration of the inspector’s recommendations. The restrictions on withdrawal, together with section 67, showed that “may adopt” addressed the different forms of plan which could be adopted, rather than conferring a discretion to refuse adoption.
4. Section 67 therefore imposed a duty as well as a power. After receipt of the inspector’s recommendation, the Council had to adopt the plan in the form required by the recommendation. The Welsh Ministers’ fallback powers did not alter that conclusion.
5. Regulation 25 of the Town and County Planning (Local Development Plan) (Wales) Regulations 2005 was not the basis of the decision. It was, however, a potent indication that the statutory scheme was understood to impose an existing duty and it specified the period within which that duty had to be performed.
6. The Council’s refusals were outside its powers and/or irrational because they proceeded on the legally mistaken premise that it could decline adoption. They also constituted failures to perform a statutory duty. The Council was directed to act promptly. No fixed deadline was imposed, but the claimants were permitted to seek further directions if prompt action did not occur. The claimants were awarded their costs.

The judgment describes permission being granted on the papers by HH Judge Jarman KC. This was a first-instance judicial review in the Administrative Court; no appeal decision is stated.