Success in Court of Appeal against Controversial Local Plan

Cllr Marc Jones was granted permission to appeal out of time and be added as appellant in a landmark case to overturn the decision of Mr. Justice Eyre [2023] EWHC 3474 (Admin) which found that the First Respondent Wrexham Council had no discretion but to adopt its Local Development Plan 2013-2028 (“the LDP”) after two votes at full council to reject the plan. It raises an important question of democratic rights of elected councillors in Wales to reject a development plan they consider unsuitable – a position that would differ markedly from that in England where there is a discretion not to adopt a plan when elected members consider it unsuitable. Indeed, Councillors, including Mr Jones, were told they could go to jail or face fines for voting against adoption of the LDP when it came before the Council in December 2023. This judgment vindicates their stance that they had the right to reject the plan. 

The Second Respondent was the Welsh Government. The Third to Ninth Respondents are a consortium of developers who were the Claimants below in the case before Eyre J. The case was heard 15-16 October 2024 with Andrew Parkinson and Barney McCay instructed by Richard Buxton Solicitors to act for Mr Jones.

On 20 December 2024, the Court of Appeal handed down its final judgment granting Mr Jones’ appeal and quashing the judgment of Eyre J and dismissing the developers’ case. It is a significant win for the democratic rights of councillors to vote to approve or reject a LDP.

It was Mr Jones’ case that the High Court Judge was wrong to conclude that the Council was required to adopt the LDP. In summary the Court of Appeal determined:

• that Part 6 of the Planning and Compulsory Purchase Act 2004 (“the PCPA 2004 Act”) which pertains to Wales grants a discretion on local planning authorities in Wales to decide whether to adopt an LDP for their area upon receipt of the Inspector’s Report into the examination of the plan as other provisions provide for in England.
• The Court also rejected arguments advanced by the opponents that Town and Country Planning (Local Development Plan) (Wales) Regulation 2005 made adoption mandatory and agreed with the appellant that regulation 25 was a timing provision not intended to remove the democratic powers invested in councillors.

151 However, for the reasons given above, there is no ambiguity in the PCPA 2004. The Act confers conditional powers on an LPA to adopt a LDP. It does not impose a duty to do so. The 2005 Regulations cannot be used to create an ambiguity in the PCPA 2004 where none exists.

• Happily, reg.25(1) can be construed consistently with the PCPA 2004. Adoption involves a decision by the LPA to exercise its power to adopt a LDP by resolution. The regulation means that any decision to adopt, if that is what the LPA resolves to do, must be made within the 8 weeks’ time limit (or any extended time limit agreed with the Welsh Ministers).

Mr Jones is also seeking to have the developers repay the £100,000 paid by Wrexham County Borough Council to the developers as there is no legal basis for them to retain the costs award since their judicial review was dismissed. This page will be updated when the order is handed down.

The related s. 113 case also lodged by Marc Jones to quash the adoption of the plan has been stayed behind this Court of Appeal case and this page will be updated when there is an outcome to that case.

Speaking after the judgement was handed down, Cllr Marc Jones, who leads the Plaid Cymru group on Wrexham Council, said:

“This is a landmark decision – it’s a major breakthrough in ensuring local councils are able to have the say in what happens in their communities. The arguments put forward by our opponents tried to say that we had no choice – that we had to vote for this flawed plan regardless of the damage it would do to Wrexham.

The judgment, by the second highest court in Wales and England, is very clear – local councils in Wales do have a choice when it comes to adopting these plans. To have a vote with no choice is not democracy. Last year we saw three votes on the LDP where councillors were told they could go to jail or face fines for voting in a certain way. This was the legal advice councillors were given.”

Earlier this year, the Welsh Ministers appealed the Court of Appeal’s decision to the Supreme Court. Permission was refused by the Court on the basis that their application did not raise an arguable point of law.