The Case
The dispute revolves around the adoption of a local development plan (LDP) by Wrexham County Borough Council. According to Section 67 of the 2004 Act, local planning authorities “may adopt” a plan, which appears to give them discretion to adopt an LDP as originally prepared. However, regulation 25 of the 2005 Regulations states that the authority “must” adopt the LDP within eight weeks of receipt of the recommendations, imposing a strict obligation on local planning authorities to adopt the LDP.
“May,” means discretion, suggesting a choice for the local planning authority. This is consistent with the discharge of a local authority function which requires a vote. Conversely, “must” conveys a mandatory obligation, arguably inconsistent with a function requiring a vote. Voting normally suggests a choice between two options, and if the council is required to adopt the plan, there isn’t a choice. This conflicting language presented some difficulty for local councillors tasked with adhering to statutory requirements whilst upholding local democracy and exercising judgement in the public interest.
Implications and Analysis
R (BDW Trading Ltd) v Wrexham County Borough Council challenged the court to reconcile these seemingly conflicting provisions. By examining the provision within its full legislative context and emphasising the mandatory nature of LDP adoption within the prescribed timeframe, the court ruled in favour of interpreting “may” in a manner consistent with regulation 25’s overarching obligation. Mr Justice Eyre summarised the approach to determining the meaning of legislation as requiring the need to have regard to the language used when seen in context, the context being:
the language of the legislation as a whole so that each section is to be seen in the context of the other provisions of the particular legislation; the factual background against which the legislation is enacted; and the purpose of the legislation. Where there is a matter which has not incorporated in legislation by express words the court can conclude that it is there by way of necessary implication. However, the implication has to be a necessary one having regard again to the language seen in context but also to the purpose of the legislation.
The case also raised interesting questions around the responsibilities of local councillors, entrusted with making decisions that impact their communities, and the options open to them in circumstances where the council’s statutory functions conflict with their views on what is best for their local area. Mr Justice Eyre gave this matter short shrift however, saying:
It is important for all concerned also to remember that the Council is a body set up by law. Its obligations and its powers depend not on some abstract democratic entitlement but on particular statutory provisions. Inevitably on some occasions elected councillors will find the restrictions on their powers irksome. On other occasions they will feel unhappy about the actions they are obliged by law to undertake. There will be other occasions when citizens will feel aggrieved at the extent of the powers a local authority has. The powers of a local authority and the duties to which it is subject are sides of the same coin. The Council’s powers derive from legislation but it cannot claim to use those powers without being subject to the duties which also imposed by legislation.
Conclusion
The tension between permissive and mandatory language underscores the need for careful consideration of legislative intent and statutory context. As local authorities continue to face legal challenges in the realm of planning law, an understanding of statutory interpretation remains essential for upholding the principles of democratic governance. That said, it will be interesting to see if understanding this area is made any more straightforward for the reader in the forthcoming Planning Consolidation (Wales) Bill.
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