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Wealden DC v Martin Grant Homes Ltd

DATE: 11 Nov 2005

Wealden District Council v Martin Grant Homes Ltd & Anor [2005] EWCA Civ 1221; Times, November 11, 2005


The Court of Appeal (Mummery LJ , Mance LJ , Patten J) have allowed an appeal by the Wealden District Council (the Council) from a decision of Collins J. ([2005] EWHC 453; [2005] 2 P.L.R. 113).


The Council withdrew its review of the Wealden local plan under Part II of the Town and Country Planning Act 1990 (the TCPA 1990). It had instead decided to produce the Local Development Documents required under the Planning and Compulsory Purchase Act 2004 (the 2004 Act), which formed part of the Local Development Framework.


Two development companies applied for judicial review of the Council’s decision. They questioned the lawfulness of the Council’s decision and contended that the effect of the withdrawal of the local plan review was that no public inquiry would take place before an independent inspector under s.42 of the 1990 Act. They further submitted that the ruling in R (Persimmon Homes (Thames Valley) Limited) and Others v. North Hertfordshire District Council and Another [2001] 1 WLR 2393 permitted local authorities to withdraw review of local plans only in exceptional circumstances.


Collins J. quashed the Council’s decision and held that it was required to continue with the local plan review under the transitional provisions in paragraph 10 of Schedule 8 to the 2004 Act.


The Court of Appeal allowed the appeal holding:


"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."


The Court held that the position was not affected by the Transitional provisions in the 2004 Act.

Richard Drabble QC and James Maurici appeared for the Wealden District Council. Natalie Lieven appeared for the First Secretary of State as Interevner.