Should Local Councils Have the Power to Reject Development Plans?
Author: Alistair Slack
Key Contacts: Steve Morris and Jim Ryan
Local councillors in Wrexham have expressed their dismay at the Welsh Government’s decision to appeal a long-standing dispute concerning Wrexham’s local development plan (LDP) to the Supreme Court.
LDPs are frameworks which local planning authorities (LPA) in Wales must prepare, and update every five years, providing guidance to councillors to identify land for development or other use. The LDP in dispute was introduced in 2012 but has been in contention ever since, most notably plans for two extensive ‘super-estates’. In 2018 the draft plan was declared sound by planning inspectors but those opposed to the plans continued their long-standing opposition, maintaining their view that any plan should instead focus on tackling empty homes and further developing already-consented sites. In 2023 a cross-party majority of Wrexham councillors twice rejected the proposed LDP. This was until a High Court judgment, following judicial review, ruled the council had ‘no discretion’ but to adopt the plan. Council officers at the time advised members that they could be prosecuted for contempt of court should they not adhere to enacting the LDP.
In December last year Cllr Marc Jones, leader of the Plaid Cymru group at the council appealed to the Court of Appeal against the High Court ruling whereby Mr Justice Eyre KC had left Wrexham without a valid LDP. The case focused on whether Section 67 of the Planning & Compulsory Purchase Act 2004 confers a discretionary power on LPAs to adopt an LDP when an Inspector recommends adoption, or whether it imposes a duty. The court held[1] that use of the word ‘may’ implied a choice upon the voting councillors, so that councillors had been provided with unlawful advice when told they could face prison, fines and seizure of assets if they voted against the decision.
Further to the December rulings, the Welsh Government has sought permission to appeal to the Supreme Court. It remains to be seen which interpretation is correct, but the matter will have groundbreaking affects on the ability of local councils in Wales to intervene with decisions of higher authorities. On one side of the table, you have those sharing an opinion with Mr Jones that ‘to have a vote with no choice is no democracy’. On the flip side, the opposition argue that years of work and resources could continue to be wasted if higher authorities can be opposed by LPAs. To many onlookers, the decision of the councillors to not adopt appears to be a continuation of the “Not in my Backyard” problem which has long hindered development. What is certain is that until the situation is resolved, Wrexham’s well-documented housing shortage continues to go unaddressed. With local authorities in England already having discretion on whether to adopt the decisions of the Welsh Government, the current ruling party will be keeping a close eye on this. It will likely consider whether current legislation may provide LPAs too much power to hinder their promise of 1.5 million new homes in the current parliament.
If you have any queries about this issue, please contact Jim Ryan and the Planning and Environmental Team.
[1] Jones -v- Wrexham County Borough Council and others [2024] EWCA Civ 1603
