In England and Wales, a local planning authority (LPA) determining an application for planning permission must have regard to the relevant provisions of the statutory development plan (s.70(2) of the Town and Country Planning Act 1990 – TCPA 1990). That determination must be made in accordance with the development plan unless material considerations indicate otherwise (s.38(6) of the Planning and Compulsory Purchase Act 2004 – PCPA 2004).
For any area in Wales, by s.38(4) of the PCPA 2004 the development plan comprises:
(1) The National Development Framework for Wales (NDFW)
(2) Any strategic development plan which includes all or part of that area;
(3) The local development plan for that area (LDP).
Each LPA in Wales must “prepare” a LDP for their area (s.62(1) of the PCPA 2004). A draft LDP is subject to public consultation and reconsideration in the light of responses from the public and consultees. When the LPA considers that the draft LDP is ready, they must submit it to the Welsh Ministers (WM) for independent examination by one or more Planning Inspectors, to determine whether the draft satisfies certain legal requirements and is “sound”. A person who has made representations seeking to change the draft LDP is entitled to be heard at the examination held by the Inspector. Many parties and statutory consultees may be involved in this process. At the conclusion of the examination, the Inspector must make recommendations as to whether or not the plan should be adopted, with or without modifications. He must also give reasons for those recommendations (s.64 of the PCPA 2004).
Section 67 of the PCPA 2004 deals with the adoption of a LDP. In summary:
(1) The 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 issues in JONES v WREXHAM CBC (2024) EWCA Civ 1603 was whether s.67 confers a power, or imposes a duty on a LPA, to adopt the LDP if the Inspector recommends adoption.
The language of s.67(1) and (2) is identical to the provisions for England in s.23(2) and (3) as originally enacted. Paragraph 45 of the Explanatory Notes for the PCPA 2004 stated that under the English provisions a LPA could only adopt a development plan document in accordance with the recommendations of the examining Inspector. It is accepted that in England a LPA has a power, not a duty, to adopt a LPD if the Inspector should so recommend.
Despite the use of the word “may” in s.67(1) and (2), the question was whether s.67 and other relevant parts of the statutory code, read as a whole, have the effect of requiring a LPA in Wales to adopt a LDP if the Inspector so recommends.
Holgate LJ observed, at para 10, that according to its ordinary and natural meaning the, the word “may” is apt to confer a discretion or power. But sometimes it may be inferred from the statutory scheme that a power is coupled with an implicit obligation to exercise that power, for example, for the making of secondary legislation without which the purpose of the primary legislation would be undermined, or for the purposes of enforcing a right.
At paras 28-43 inclusive Holgate LJ set out the Welsh statutory provisions, to be contrasted with the English provisions at paras 44-54 inclusive.
Holdgate LJ’s discussion began at para 73. He observed from para 73 that 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. He concluded, at para 84 that, s.67 read as a whole, clearly indicates that the LPA is not under any obligation to adopt a LDP following independent examination. Notwithstanding a recommendation from the Inspector that it should adopt the LDP, the authority may decide not to do so.
Holgate LJ then referred, at paras 85-89 inclusive, to the Explanatory Notes for the PCPA 2004; and next discussed the statutory scheme in Wales, saying:-
“90. The respondents accept that the implications of a duty on the part of a LPA to adopt an examined LDP must depend upon provisions in the PCPA 2004 outside s.67.
91. A LPA in Wales must “prepare” a LDP (s.62(1)). The plan must be in “general conformity” with the NDFW (s.62(3A)). That is a matter of degree or planning judgment for the planning authorities involved, in accordance with the functions under the legislation and subject to review on public law principles …
92. The principle of general conformity with the new NDFW operates alongside s.62(2) and (6). In preparing a LDP the LPA is obliged both to have regard to the NDFW and to include the authority’s objectives for the development and use of land in their area and their general policies for implementing those objectives.
93. Accordingly, a LPA’s obligation to prepare a LDP is accompanied by a broad discretion for the authority as to the content of that plan. The plan contains the policies of a locally elected, democratically accountable public authority.
94. The draft LDP has to be submitted by the LPA for independent examination under s.64. That ensures that an Inspector determines whether the plan meetings certain legal requirements and whether it is sound, looking at the justification for individual policies and their relationship with the NDFW.
95. Following that process of scrutiny, it is only if the Inspector recommends that the plan be adopted with or without modifications that it can be adopted by the LPA and form part of the statutory development plan. At that stage the plan returns to the local democratic authority whose policies were the subject of that examination process. The plan is adopted by that body, not by the examining Inspector. All this indicates that the LPA has a discretion whether to adopt a plan, in the light of the Inspector’s report and the prevailing circumstances at the point of adoption.”
“103. …once the draft LDP has been submitted for examination, s.66A(4) determines whether the examination process does or does not continue. One possible outcome is that the plan may be withdrawn, so that the adoption stage will not be reached. But even if the LPA is not allowed to withdraw the plan and the examination process has to be concluded, that does not imply that s.67(1) and (2) are duties, rather than powers, to adopt. The only implications of s.66A(4) is that the examination process should continue for the purposes set out in s.64(5), leading to the production of the Inspector’s report, so that informed decisions on the plan may be reached by the LPA, or in default by the WM, in the light of that report.
104. To summarise, the objects of the restrictions in s.66A on withdrawal of a LDP by the LPA are firstly, to enable the examination of a plan submitted under s.64 to be concluded and considered by the LPA and secondly, to prevent the LPA’s power of withdrawal frustrating the possible exercise of the WM’s powers to call-in the plan under s.65 or to intervene under s.71. Treating s.67(1) and (2) as conferring conditional powers and not obligations to adopt does not conflict with those objects.
105. Furthermore, I do not accept that a decision by the LPA not to adopt a LDP leaves a draft plan in limbo. The WM can intervene under ss.65 or 71 and proceed to adopt the plan, with or without modifications, if that is considered appropriate. A decision by a LPA not to adopt a plan is fundamentally different from a decision by the authority to withdraw the plan. A decision not to adopt a plan leaves the powers of the WM intact. A decision to withdraw a plan prevents those powers from being exercised.”
“117. There is no reason why the word “must”, or some equivalent expression, could not have been used in s.67(1) and (2). For the reasons set out above, Part 6 of the PCPA 2004 does not provide any basis for implying into those provisions an obligation on the part of LPAs in Wales to adopt a LDP.”
From para 118 Holgate LJ compared the Welsh and English legislation, and from para 131 provided an historical perspective. He concluded, at para 155, that the PCPA 2004 does not impose a duty on LPA in Wales to adopt a LDP which, following the examination process, the Inspector has recommended for adoption. Sir Keith Lindblom and Baker LJ agreed.