Marc Jones v Wrexham County Borough Council & Ors

Section 67(1) and (2) of the Planning and Compulsory Purchase Act 2004 confer conditional powers, not a duty, on a Welsh local planning authority to adopt a local development plan after independent examination. The authority may decline to adopt even where the Inspector recommends adoption. If it adopts, it must use the form authorised by the Inspector’s recommendation. The statutory duties to prepare and examine a plan, restrictions on withdrawal, and Welsh Ministers’ intervention powers do not imply a duty to adopt. A decision not to adopt does not leave the plan in limbo because ministerial call-in and default powers remain available. Regulation 25(1) of the 2005 Regulations imposes an eight-week period for deciding whether to adopt. It does not create a freestanding duty to adopt.

Wrexham County Borough Council prepared a local development plan which two Inspectors recommended for adoption with modifications. The Full Council resolved twice not to adopt it. Developers brought judicial review proceedings. Eyre J allowed the claim, quashed both resolutions and remitted the matter for reconsideration, stating that only adoption of the modified plan would comply with the judgment: [2023] EWHC 3474 (Admin).

Marc Jones, a councillor, was joined to challenge that decision. The central issue was whether section 67(1) and (2) of the Planning and Compulsory Purchase Act 2004 imposed a duty, or merely conferred a conditional power, to adopt an examined local development plan. The appeal also concerned the effect of withdrawal restrictions, ministerial intervention powers and regulation 25 of the 2005 Regulations.

Appeal allowed. The developers’ claim for judicial review was dismissed. The resolutions of 19 April and 14 June 2023 were not unlawful.

1. Section 67. Holgate LJ, with Baker LJ and the Senior President of Tribunals agreeing, held that section 67(1) and (2) of the Planning and Compulsory Purchase Act 2004 creates two conditional powers. The local planning authority may adopt the plan as originally prepared only if the Inspector recommends that course, or may adopt it with modifications only in the form recommended. The word “may”, read with the Inspector’s advisory “recommendations” under section 64(7), does not compel adoption. The contrast with “must” elsewhere in the scheme, including section 67(4), reinforced that conclusion.
2. The duties to prepare and submit a plan for examination do not imply a duty to adopt it. The authority retains broad planning and policy discretion over the plan’s content. Restrictions on withdrawal under section 66A ensure that examination can be completed and preserve the Welsh Ministers’ intervention powers. They do not convert the adoption power into a duty.
3. A refusal to adopt does not leave the plan in limbo. The Welsh Ministers may call in the plan under section 65 or intervene under section 71. Section 65(5)(c) can operate where the Inspector has already reported to the authority, allowing the report to be sent to the Welsh Ministers. The statutory scheme therefore contains no impasse requiring an implied duty to adopt.
4. The differences between the Welsh and English planning codes, and the historical position before the Planning and Compulsory Purchase Act 2004, did not justify a different interpretation. Both regimes preserve a conditional power to adopt exercised by a democratically accountable authority.
5. Regulation 25(1) of the 2005 Regulations is a time limit for making a decision on whether to exercise the adoption power. Subordinate legislation cannot impose a freestanding adoption duty where the primary legislation is clear. The principle concerning the limited interpretive use of subordinate legislation stated in Hanlon v The Law Society [1981] AC 124 supported that construction.

• Court of Appeal (Civil Division): Allowed the appeal and dismissed the developers’ judicial review claim.
• High Court of Justice, King’s Bench Division, Planning Court: Eyre J allowed the judicial review claim, quashed the Council’s decisions not to adopt the plan and remitted the matter for reconsideration: [2023] EWHC 3474 (Admin).