Judges to decide on Wrexham's LDP following appeal hearing

A day-and-a-half long hearing at the Court of Appeal before the Senior President of Tribunals, Lord Justice Baker and Lord Justice Holgate concluded on Wednesday afternoon.

The appeal was brought by Wrexham Councillor Marc Jones to challenge a ruling handed down by Mr Justice Eyre last year - in which he quashed two previous votes by councillors to reject the county's LDP and ordered the council to adopt it.

The appeal was opposed by representatives of a number of developers, Wrexham Council and the Welsh Government. 

Morag Ellis KC, representing the third respondent (several developers), told the court on Wednesday morning: "All of our clients have interests in land allocated in the draft LDP.

"Those 'draft' allocations have been found sound by the planning inspectors.

"Some of our clients, and indeed others as well, have made planning applications which are currently effectively stalled by these proceedings."

Ms Ellis KC said the situation had resulted in a "limbo" which was "simply not envisaged in the statutory scheme."

She added that the legislation entails a sequence of five events, namely;

• Shaping the draft LDP with scope for public consultation and democratic choice,
• Submission to independent scrutiny
• Communication of an inspector's findings and required changes
• Adoption of the LDP (in light of any such changes)
• And finally public notice of the adoption and incorporation of the LDP into development control functions.

"We submit," she added, "that introducing a discretion not to adopt at stage four (adoption) would impede the statutory objectives behind the duty of local planning authorities in preparing LDPs."

Ms Ellis KC added that the council had "not discharged their duty" of preparing a plan "to be known as an LDP" for the county.

Andrew Parkinson, representing the appellant, asked the court on Tuesday to consider the wording of the legislation, questioning whether the relevant sections imposed a mandatory duty on the authority to adopt the plan - or a discretion to choose for itself.

In conclusion on Wednesday, he told the court there had been nothing produced during the appeal which would be "sufficient to displace the starting presumption that 'may' means may," as opposed to 'must.'

He added the respondents interpreted the legislation as saying the council "must adopt the LDP and must do so within eight weeks of receipt" (of an inspector's recommendation to adopt), explaining: "There are two things going on here; 'adopt' and 'do so in eight weeks.'

"We say no - it says a 'decision to adopt' must be made in eight weeks. It doesn't tell you what decision to take, it deals with the timing.

"We say the legislation imposes an 'obligation to prepare a plan.'

"That's designed to ensure local planning authorities have up-to-date local plans.

"But it stops short of imposing an 'obligation to adopt.'

"On the appellant's interpretation, the act sets out a coherent structure that avoids a situation like this, where a cross-party group of councillors, including the leader of the council, are required to adopt a plan they don't want and use it to guide decisions.

"All of this could have been avoided had the act worked as intended and the Welsh Ministers made a decision either way on what should happen with this plan that has been rejected at local level.

"That's how the act is meant to work."

During the first day of the appeal, Martin Carter - acting on behalf of Wrexham Council - told the court: "It is accepted by the appellant that in appropriate cases, the word 'may' can impose a duty to act.

"When one draws all the threads together, the appropriate conclusion in this case is that [the legislation] does impose a duty to adopt and Mr Justice Eyre was right to hold as he did.

"The structure of the act is to drive the preparation and adoption of local development plans - and the national and strategic components - to make sure planning policy is up to date and works effectively together.

"Giving the local planning authority the discretion to abandon a plan at that late stage runs the risk of leaving the local component of the plan absent."

And Tim Corner KC, representing the Welsh Government, told the hearing on Tuesday it was very clear in the legislation that the council was under an obligation to adopt the plan.

He explained Wrexham Council had been written to in June last year, confirming it was the "only one (authority) in Wales which had failed to meet its statutory obligation to adopt an LDP."

"We are very anxious," he said, "that this LDP which has been adopted remains adopted.

"We have done our very best to make sure that this local authority, as all local authorities in Wales, know they have a duty to adopt, and that the inspector's report is binding upon them."

He added that the use of words such as 'may' as opposed to 'must' in the relevant legislative sections regarding a local authority's adoption of the LDP "is just referring to the different circumstances in which the obligation to adopt arises."

At the conclusion of the day-and-a-half hearing, the Rt. Hon. Sir Keith Lindblom, Senior President of Tribunals, thanked all parties for their "clear and helpful submissions," adding: "you have given us plenty to think about."

Judgement on the matter was reserved "to be handed down in due course."