England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
MR JUSTICE COLLINS
ADMINISTRATIVE COURT CO/3957/2004

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/10/2005

Lord Justice Mummery :

This is the judgment of the court, to which all members of the court have contributed.

Introduction

1. The Wealden District Council (the Council) is the local planning authority for Uckfield, East Sussex. On 19 May 2004 the Council decided to abandon the statutory process it had undertaken which would have led to the review of the existing Wealden Local Plan. Instead it decided to direct its resources to producing the Local Development Documents now required under the Planning and Compulsory Purchase Act 2004 (the 2004 Act), which now form part of the Local Development Framework. The emerging local plan was in the meantime to be adopted as a non-statutory plan. An application for judicial review was made against the Council by two development companies, Martin Grant Homes Limited and Taylor Woodrow Developments Limited (the respondents). They wish to promote housing development on land owned by them at Bird in Eye North (the Site), adjoining the east side of the built-up edge of Uckfield. The Site has not yet been allocated for development.
2. Collins J quashed the decision by the Council on 19 May 2004 "to abandon/ withdraw its emerging Local Plan Review." The Council appeals against the court order dated 4 March 2005. As he considered that there were important issues justifying an appeal, Collins J granted permission to appeal.
3. Laws LJ granted permission for the First Secretary of State to intervene in the appeal on the ground that the judgment of Collins J raised a point of general importance affecting the power of local planning authorities to withdraw local plans, in particular during the period governed by the transitional provisions contained in the 8^th Schedule to the 2004 Act.
4. On the hearing of the appeal the court admitted written evidence, which was not before the judge, from Mr Michael Ash, the Deputy Director and Chief Planner within the Office of the Deputy Prime Minister; from Mr Michael Oldham, who was the Council's Head of Policy and Development until April 2005 and now advises the Council as a consultant; and from Mr Jeremy Woolf, a Planning Consultant advising the respondent developers.
5. The Council's decision to withdraw the local plan was taken while Part II of the Town and Country Planning Act 1990 (the 1990 Act) was in force. Although the 2004 Act had received the Royal Assent on 13 May 2004, the relevant parts (including those repealing Part II of the 1990 Act) were not brought into force until 28 September 2004. The Council's decision to withdraw the emerging local plan occurred in the period between those two dates.
6. It is common ground that the Council had power under the 1990 Act to abandon or withdraw an emerging local plan: R (Persimmon Homes (Thames Valley) Limited) and Others v. North Hertfordshire District Council and Another [2001] 1 WLR 2393, also a decision of Collins J. The parties disagree about the scope of the Council's discretion and its availability in this case, having regard to the transitional provisions of the 2004 Act, in particular paragraph 10 of the 8^th Schedule.
7. In two key paragraphs of his judgment allowing the respondents' claim Collins J held that the transitional provisions of the 2004 Act required the local plan to continue. The power to withdraw it was accordingly not available to the Council.

"44. Whatever may be the scope of the power, it should not in my view be used to override provisions set out by Parliament to deal with a particular situation. The transitional arrangements should be followed unless there is a very good reason not to do so. This is particularly the case, as it seems to me, where paragraph 8 [of Schedule 8 to the 2004 Act] requires abandonment but the other paragraphs require, on the face of them, that the local plan process continue."

"51. Here there is a statutory code. It must be followed unless there is good reason not to do so. Such reason may be found if there are grounds to abandon the emerging plan in the sort of circumstances envisaged in Persimmon. But the view that it would be more economical and sensible is not such a reason. …."

Two issues

8. The appeal raises two main issues on which the court heard detailed arguments from Mr Richard Drabble QC for the Council, Miss Nathalie Lieven for the First Secretary of State and Mr Peter Village QC for the respondent developers: first, the scope of the power to withdraw, the existence of which was recognised in Persimmon and is not challenged in these proceedings (the Persimmon point); and, secondly, the impact of the transitional provisions in paragraph 10 of the 8^th Schedule to the 2004 Act on Council's exercise of its discretion to withdraw the local plan review (the transitional provisions point).

Outline facts

9. In December 1998 the Wealden Local Plan 1994 to 2004 was adopted. The Site was not allocated for housing development in that plan.
10. There was a delay of about 2 years in the timetable for the production of a replacement plan. The result was as at the time of the decision in issue it was anticipated that it would not be adopted until 2007/08 instead of 2005/06. In January 2003 the Council deposited the first draft of the Wealden local plan review. It contained proposals for the review and replacement of the Wealden Local Plan 1994 to 2004. One proposal was to allocate the Site for housing. However, subsequently following representations made on the first deposit draft the Council's Local Plan Special Review Committee resolved to delete the Site from the emerging Local Plan and replace it with two other sites not owned by the respondents.
11. The East Sussex Structure Plan 1991-2001(the Structure Plan) contained proposals for the building of 3,300 homes in the Wealden District between 2006 and 2011.
12. The procedure under the 1990 Act in relation to the review of local plans provided inter alia for the holding of a public local inquiry on objections to the proposals and for an independent inspector to conduct it.
13. Correspondence took place between the Council and the Government Office for the South East (GOSE) on the planning options available to the Council in the run up to the 2004 Act. Wide ranging changes to the planning regime were to be introduced by the 2004 Act, including a new development plan scheme providing for the preparation of local development documents (LDDs) which will replace local plans, unitary development plans and structure plans, new powers which allow for the reform and speeding up of the plans system and the replacement of plan inquiries with examinations of LDDs by independent inspectors. Planning policy Statement 12:Local Development Frameworks, which provides guidance in relation to the 2004 Act, makes clear the Government's aim that the time horizon for LDDs under the new system should be for a period of at least 10 years from the date of adoption.
14. In a letter to the Council on 16 October 2003 GOSE referred to the proposed fundamental changes to the development plan system, expressed concern at the timetable for the Council's local plan review which might not be adopted until 2008 and would then only apply for the period until 2011, and suggested 3 options for a way forward for the Council in connection with the transitional arrangements under the 2004 Act: (1) speeding up the progress of the emerging local plan; (2) twin-tracking the Local Development Framework (LDF) procedure (to be introduced by the 2004 Act as part of the new system for Local Development Schemes (LDSs) and having a minimum 10 year life)) with the emerging local plan; (3) abandoning the emerging local plan and preparing an LDF in its place by 2007.
15. The Council considered the position set out in the GOSE letter. On 15 December 2003 it decided to continue with the local plan review and to twin-track it with an LDF under the 2004 Act. It rejected the option of abandoning the local plan and preparing the production of an LDF by 2007. The decision was endorsed by the Council's cabinet on 14 January 2004
16. Under the 2004 Act the LDF would comprise Development Plan Documents (DPDs) and Supplementary Planning Documents (SPDs). They would contain core strategy and allocations of housing and business development, together with a proposals map and inset maps. They would have to conform to the requirements of an overarching Regional Spatial Strategy (RSS) to be set for the South East (and called the South East Plan) by a body called the South East of England Regional Assembly (SEERA).
17. In February 2004 SEERA indicated that it expected to submit the draft South East Plan to the Secretary of State in the summer of 2005.
18. GOSE sent another letter to the Council on 17 March 2004 expressing concerns about the programme adopted by the Council for the local plan review and the preparation of an LDF in parallel. It was very likely to be very demanding for staff, councillors and other participants in the processes. It pointed out that all Districts were being asked to commence work immediately on an LDF in anticipation of the 2004 Act coming into force and to adopt the main components of their LDF by the end of March 2007 with a horizon of at least 10 years. GOSE pointed out the disadvantages of the course adopted by the Council. It also alerted the Council to the help that it could derive in the process from the Planning Delivery Grant (the PDG).
19. The Council considered the letter and a detailed officer report was prepared for a meeting held on 5 May 2004. The Council decided to change direction. On 19 May 2004 it resolved, for 7 reasons derived from the officer report, to discontinue work on the existing statutory draft plan containing the planning proposals, and to commence work on an LDF (under the provisions of the 2004 Act) covering the period down to 2017. One factor in the change of direction was that, if the Council proceeded with the local plan review, there was a risk that its share of PDG would be reduced, as it would not have the LDF documents prepared or achieve the milestones in the LDS.
20. The 7 stated reasons were, the Council submitted, reasonable in themselves and demonstrated that it had a proper purpose for withdrawing the local plan review. In reaching its decision the Council had also considered the disadvantages of taking the withdrawal course.
21. The stated reasons fell under the following 7 headings (1) pressure from GOSE to commence an LDF in the summer of 2004 and to complete it by 2007; (2) pressure from GOSE to ensure an appropriate level of housing provision in accordance with the Structure Plan and the emerging RSS; (3) pressure from GOSE to extend the plan period to 10 years in the local plan review; (4) the resource implications and potential for public confusion in having 2 major public inquiries within a year of each other; (5) questions about the need for and effectiveness of the public inquiry in view of the need to grant permission for a considerable number of dwellings in advance of the receipt of the local plan inquiry inspector's report; (6) the benefits of the early commencement of the LDF; (7) the need to maintain and improve the Council's comprehensive performance assessment and to maximise the PDG.

The dispute

22. The core issue in these proceedings is the lawfulness of the Council's decision, which was ratified on 9 July 2004, to withdraw the local plan review.
23. In brief, the respondents' case, which was successfully advanced by them as claimants in the judicial review proceedings, was that the Council acted unlawfully, because its power to withdraw the local plan was limited to exceptional circumstances, which did not exist in this case; it failed to follow the statutory code in the transitional provisions; and it had no proper reasons for abandoning the local plan review.
24. The Council's case, in summary, was that its decision was lawful in that it acted rationally and for proper reasons and that there was nothing in the transitional provisions removing or curtailing the admitted Persimmon power to withdraw the local plan review.
25. The Council accepted that one effect of the withdrawal of the local plan review was that no public inquiry would take place before an independent inspector under section 42 of the 1990 Act. The respondents emphasised that the cornerstone of the development plan system is the right of objectors to have their objections considered by independent inspectors at a public inquiry, who would be in a position to consider all possible sites and make a fair judgment as to the most suitable. That system provided certainty, parity and fairness.
26. The respondents said that the local plan would be replaced by a non-statutory plan identifying development sites, which would lead to appeals under section 78 of the 1990 Act in relation to refusals of permissions and challenges by way of judicial review to the grant of permissions. The First Secretary of State made it clear in his submissions that the Council's decision focused on the LDF rather than the local plan review, with a view to planning for a much longer timescale and saving resources, and that the overall effect was merely to delay the production of an independent inspector's report by a period of between 6 and 12 months.

The proceedings

27. The lawfulness of the Council's decision was challenged by the respondent developers in a letter before claim on 14 July 2004 requesting the Council to confirm that it no longer intended to abandon/withdraw its emerging local plan; to proceed to publish a revised Deposit Draft; and to hold a public inquiry into objections to that revised Deposit in accordance with the provisions of the 1990 Act. The Council refused to accede to the request.
28. The application for judicial review was lodged on 16 August 2004. The grounds of challenge were that there was no express power in the 1990 Act to withdraw/abandon an emerging Local Plan; that the ruling in Persimmon only permits local authorities to withdraw local plans "exceptionally"; that the circumstances envisaged in Persimmon did not arise in the present case, where the intention was to carry forward the policies and allocations in the emerging local plan into the non-statutory plan and used for development control purposes; that the primary reason for the abandonment of the local plan was not to withdraw policies but to avoid a local plan inquiry allegedly to save costs and officer time, which reasons did not fall within the "narrow circumstances" for justifying withdrawal, as identified in Persimmon.
29. It was also contended that the Council had acted unlawfully and irrationally in reaching its decision by failing to take material considerations into account and by taking immaterial considerations into account. On the one hand, the Council had disregarded the adverse effect of its decision on landowners, whose land had not been included in the proposed non-statutory plan and who would be deprived of having their representations considered by an independent inspector free of local political pressure. On the other hand, the Council had regard to the financial consequences of proceeding with the local plan review, which were irrelevant given the statutory requirements cast upon the Council to prepare a local plan, or which, if relevant, should have been balanced against the expense to the Council of having to deal with a large number of ad hoc appeals under section 78 of the 1990 Act and of legal challenges to development control decisions.
30. Finally, it was claimed that the Council had been incorrectly advised, or not fully and properly advised, about the position of GOSE and about the weight to be attached to the non-statutory plan and other matters in PPG1 .
31. Events moved on while the judicial review proceedings were pending. In September 2004 SEERA revised its timetable for submission of the draft South East Plan to the Secretary of State. The estimated time was then autumn 2005. (It has since slipped to Spring 2006 and it is predicted that it will be published in December 2007.) In November 2004 the Council published its revised draft non-statutory plan. On 22 December 2004 the Council approved its draft LDS and advised that the Housing DPD could be adopted in November 2008 on the assumption that the South East Plan would be approved in 2006.

The Persimmon point

32. The scope of the Council's power under the 1990 Act to withdraw the emerging local plan is the first area of contention (the Persimmon point). It is common ground that the local planning authority may exercise its discretion in certain circumstances to withdraw a local plan review commenced under section 39 of the 1990 Act. The Council's ground of appeal is that the judge erred in holding that the Persimmon power was unavailable in the circumstances of this case.
33. The discretion has been called "a common law power." That is an inaccurate description of the Council's discretion to withdraw a local plan. It is a statutory discretion implicit in the scheme and provisions of the 1990 Act. As such it must not, of course, be exercised irrationally or unreasonably in the Wednesbury sense.
34. Collins J had no difficulty in demonstrating in his judgment in Persimmon the basis for holding that a power to withdraw the local plan was implicit in the 1990 Act. The legislation contained express powers to withdraw and to make proposals to amend and replace unitary development plans (section 14 of the 1990 Act) and structure plans (section 34 of the 1990 Act). They were free of conditions and limitations, other than the normal public law requirements that the exercise of the power should promote the objects of the legislation.
35. Although the express references to the withdrawal of emerging unitary development plans and structure plans were contrasted with the absence of an express power in the case of an emerging local plan, no sensible reason could be discerned by Collins J for the omission of a similar power to withdraw a local plan. Persimmon is authority for the proposition that the existence of such a power was implicit in the scheme of the 1990 Act. It was necessary to imply such a power in order to avoid absurdity: for example, the absurdity of a local plan having to be put through the costly statutory procedure, including a public inquiry, when the local planning authority knew in advance that it would not be adopted: see Persimmon, paragraph 23 .
36. The Council's contention, supported by the First Secretary of State, was that the exercise of the implied power is not narrowly limited to exceptional or to very special circumstances. There was no sensible reason why the Council's power should not be exercisable whenever there was a relevant and proper reason for doing so.
37. Against that the respondents argued that the exercise of the power was confined to "exceptional circumstances," such as when the local planning authority knew that the proposals would not be adopted, even if modified, and that withdrawal would avoid going through expensive procedures for no sensible purpose. The respondents were unable to point to any special express or implied statutory limitations in the 1990 Act on the exercise of the Council's discretion. Their submission was that the power recognised in Persimmon should not be used to abandon a local plan containing the policies, which the Council wished to pursue.
38. In our judgment the Council had a discretion to withdraw the local plan review when it did and for the reasons that it did. It acted in a way which was consistent with the objectives of the planning legislation. The Council's decision to withdraw the local plan review was based on a consideration of a detailed and lengthy officer's report of 5 May 2004 setting out the main reasons in support of a decision to withdraw and also analysing the disadvantages of doing so.

Transitional provisions

39. The transitional provisions point concerns the impact of Schedule 8 to the 2004, in particular paragraph 10, Act on the availability of the Council's Persimmon power to withdraw the local plan. The transitional provisions in the Schedule were central to the decision of Collins J that the Council had acted unlawfully. The Council submitted that the judge materially misunderstood the transitional provisions, wrongly treated them as determinative of the case before him and mistakenly concluded that they narrowed the scope of the Persimmon power.
40. The evident purpose of the provisions was to avoid a policy vacuum in planning procedures while the LDFs were being prepared. The schedule set out the relevant procedures depending on the stage to which the emerging local plan had progressed and provided for the continuance of local plans in existence at the commencement of the 2004 Act. Existing policies were saved for a period of up to 3 years unless replaced by a new policy in the meantime or unless otherwise directed by the Secretary of State. The critical question is how, if at all, the transitional provisions operated to prevent the Council from withdrawing the local plan and required it to go on with it.
41. The Council's case, supported on this appeal by the First Secretary of State, was that there was no reason why a situation covered by the transitional provisions should be treated any differently than any other case of withdrawing a local plan. In order to resolve this point it is necessary to consider the detailed provisions of the schedule.
42. The transitional period was defined as the period starting with the commencement of section 38 of the 2004 Act and ending on whichever was the earlier of two dates

"(a) the end of the period of three years;

(b) the day when in relation to an old policy, a new policy which expressly replaces it is published, adopted or approved."

43. It was provided that a new policy is adopted or approved if it is contained in a development plan document, which is adopted or approved for the purposes of Part 2: see paragraph 1(8).
44. Paragraphs 8 to 12 of the schedule, which deal with the "Local plan," are relevant to the arguments advanced on the appeal and need to be set out in full.

"8. (1) This paragraph applies to proposals for the alteration or replacement of a local plan for the area of a local planning authority.

(2) If before the commencement of Part 2 of this Act the authority have not complied with section 40(2) of the principal Act (making copies of the proposals available for inspection)-

(a) they must take no further step in relation to the proposals;

(b) the proposals have no effect.

(3) In any other case paragraph 9 or 10 below applies.

9. (1) This paragraph applies if-

(a) before the relevant date the local planning authority is not required to cause an inquiry or other hearing to be held by virtue of section 42(1) of the principal Act (inquiry must be held if objections made), or

(b) before the commencement of Part 2 of this Act a person is appointed under that section to hold an inquiry or other hearing.

(2) If this paragraph applies the provisions of Chapter 2 of Part 2 of the principal Act continue to have effect in relation to the proposals.

(3) The relevant date is whichever is the later of-

(a) the end of any period prescribed by regulations under section 53 of the principal Act for the making of objections to the proposals;

(b) the commencement of Part 2 of this Act.

10(1) If paragraph 9 does not apply the provisions of Chapter 2 of Part 2 of the principal Act continue to have effect in relation to the proposals subject to the modifications in sub-paragraphs (2) to (5) below.

(2) If before the commencement of Part 2 of this Act the local planning authority have not published revised proposals in pursuance of regulations under section 53 of the principal Act-

(a) any provision of the regulations relating to publication of revised proposals must be ignored,

(b) the authority must comply again with section 40(2) of the principal Act.

(3) If before the commencement of Part 2 of this Act the local planning authority have published revised proposals in pursuance of regulations under section 53 of the principal Act the authority must comply again with section 40(2) of that Act.

(4) Any provision of regulations under section 53 of the principal Act which permits the local planning authority to modify proposals after an inquiry or other hearing has been held under section 42 of that Act must be ignored.

(5) If such inquiry or other hearing is held the authority must adopt the proposals in accordance with the recommendations of the person appointed to hold the inquiry or other hearing."

11. [Not material]

12. If proposals are adopted or approved in pursuance of paragraphs 9 to 11 above paragraph 1 of this Schedule applies to the policies contained in the proposals as if-

(a) they were policies contained in a development plan for the purposes of section 54 of the principal Act;

(b) the date of commencement of section 38 is the date when the proposals are adopted or approved."

45. In this case the parties are all agreed that paragraph 10 of Schedule 8 applied, because the first draft of the local plan review had been deposited and the circumstances set out in paragraph 9(1) were not applicable.
46. The effect of the transitional provisions was that they only applied if the Council continued with its local plan review. Under paragraph 1(2) the local plan review could have been saved for up to 3 years, subject to the old policies being superseded by the adoption of LDDs containing policies covering the same issues.
47. The scheme of Schedule 8 is that a line is drawn at the stage in the review procedure under the 1990 Act prescribed by section 40(2) of that Act (making copies of the revised plan available for inspection). If the local planning authority has not yet got to that stage, then they cannot proceed any further and must discontinue the review process. That is the effect of paragraph 8 of the Schedule. If, however, as in this case, the local planning authority has published the revised local plan before the commencement date of Part 2 of the 2004 Act, but has not yet got to the inquiry stage (paragraph 9), then paragraph 10 applies.
48. Paragraph 10 of the transitional provisions did not, however, require the Council to continue with the local plan review if it did not wish to. It simply preserved the relevant provisions of the 1990 Act (sections 36 to 43) during the transitional period, subject to the procedural modifications contained in sub-paragraphs (2) to (5) of paragraph 10. None of the sub-paragraphs restricted the Council's power to withdraw the revised plan prior to adoption. There was nothing in paragraph 10 or in any of the other transitional provisions expressly removing or modifying the power of the Council under the 1990 Act, as recognised in Persimmon, to withdraw its local plan review. Paragraph 10(1) continued in force during the transitional period the relevant provisions of the 1990 Act, including the implied power to withdraw.
49. The effect of the Council's decision to withdraw the local plan review was that the transitional provisions ceased to apply to the situation of the Council. Accordingly there was no question of the Council acting contrary to the transitional provisions in its decision to withdraw the local plan review.
50. In our judgment, Collins J erred in treating the transitional provisions as in some way removing or restricting the Council's power to withdraw its local plan review during the transitional period.
51. The transitional provisions were also relied on by the respondents in another context, namely in determining the length of life of a revised local plan continued and adopted during the transitional period. There is an issue between the parties as to whether the life of the revised local plan, if adopted during the transitional period, would be a minimum of 3 years or would end once the relevant policies in the LDF came into force. The issue turns on the application or not of paragraph 1(2) of Schedule 8.
52. On the hypothesis that a new local plan is adopted after the commencement of section 38 of the 2004 Act, then paragraph 12 of Schedule 8 applies paragraph 1 to the policies in question on the basis set out in sub-paragraphs (a) and (b). The policies in the revised plan will therefore have a life of 3 years from adoption (paragraph 1(2)(a)), unless paragraph 1(2)(b) applies. The LDF would be a new policy for the purposes of paragraph 1(2)(b): see paragraph 1(5). It would therefore replace the policies in the revised plan, if the LDF was adopted within the 3 year period, provided that the revised local plan constitutes an old policy for the purposes of paragraph 1(2)(b). The definition of an "old policy" is contained in paragraph 1(4). The revised plan is a development plan for the purposes of section 54 of the 1990 Act because paragraph 12(a) deems it to be one. The issue is whether it is a policy which "immediately before the commencement of section 38 forms part of such a plan."
53. The problem is that paragraph 12(b) deems the commencement of section 38 for these purposes to be the date of adoption of the revised plan. Literally construed paragraph 1(4) is not therefore satisfied. The revised plan could not be a development plan prior to adoption: see the opening words of paragraph 12. On this basis the revised local plan has a life of 3 years and is not superseded by the LDF on adoption. This may be a mistake in the drafting of the transitional provisions as the result does not make sense. Its effect is, however, mitigated by section 38 (5) of the 2004 Act, which would give precedence to the later policy. This may therefore make it unnecessary to decide this point.

Other points

54. In his judgment quashing the Council's decision to withdraw the local plan review Collins J was critical of the GOSE letters to the Council as "inappropriate" and as containing thinly veiled financial threats in their references to the Council's Comprehensive Performance Assessment and the PDG, and perhaps unduly influencing the Council to depart from the statutory scheme.
55. We do not see any grounds for regarding the letters as improper or as other than expressing a legitimate concern about the timetable for the local plan review and about providing certainty for the future by having an LDF in place with a planning framework of 10 years. As for the reference to the Comprehensive Performance Assessment and the PDG, there was nothing improper in GOSE pointing out to the Council that its failure to meet the appropriate timetable could impact on its assessment and on the level of grant it could receive.
56. The Council also complained that the Judge did not grapple with the detailed reasons, which were based on the officer's report prepared for the meeting of 5 May 2004, for taking the decision to withdraw the local plan. In view of our conclusions on the Persimmon point and the transitional provisions it is unnecessary to deal with that contention.

Result

57. The appeal is allowed. The order of 4 March 2004 will be set aside and the application for judicial review is dismissed.