Creed -Miles, R (on the application of) v Tower Bridge Yacht and Boat Co Ltd

A planning permission must be interpreted consistently with the terms of the earlier decision governing the development. Where an inspector has required a minimum separation distance, a planning authority cannot approve plans which depict a smaller exclusion zone, even if the permitted development itself does not physically enter the required zone. A drawing which creates an apparent gap or ambiguity may itself justify judicial review relief because it risks future disputes and fails to give effect to the earlier decision.

The claimant challenged Southwark’s planning permission for a moving brow and floating platform serving moorings opposite Creeds Wharf. Earlier planning decisions required a 25-metre exclusion zone from specified windows and a further 21-metre radius from the relevant side-window corners. The claimant argued that the 2011 permission unlawfully permitted development within a wider exclusion zone, including an arc reducing from 25 metres to 21 metres.

The central issues were the proper construction of the earlier inspector’s decision and whether the approved drawings complied with it. The court also considered whether the challenge was academic because the development did not itself enter the properly construed 21-metre zone.

1. Construction of the earlier decisions. The first inspector’s decision required a 25-metre separation between the relevant windows and vessels or moorings. The second inspector allowed an appropriate reduction for oblique views, but required a 21-metre radius from the relevant corners of the side windows. The words “or thereabouts” did not authorise a lesser distance.
2. Rejection of the claimant’s proposed arc. The claimant’s proposed arc, beginning at 25 metres perpendicular to the frontage and reducing to 21 metres at the river wall, was rejected. The second inspector had specified a 21-metre radius for oblique views. The court therefore construed the protection as overlapping exclusion zones: 25 metres from the relevant front windows and 21-metre radii from the side-window corners.
3. Effect of the approved drawings. Although the permitted development did not itself come within 21 metres of the upstream windows, the approved drawings depicted an exclusion zone narrowing to approximately 17 metres. That was inconsistent with the earlier decision, which expressly stated that anything less than 21 metres would unacceptably prejudice living conditions. The issue was not academic because the drawings created a gap capable of generating future disputes about moored vessels or other development.
4. Relief. The claimant was entitled to some relief. The parties were directed to seek agreement on the appropriate form of order, with brief skeleton arguments and a further hearing if agreement could not be reached. The court observed that both claimant and defendant had achieved some success.

The court noted, without deciding the legal effect of the claimant’s correspondence with the council, that a failure by a public authority to keep a promise may override other considerations only where it is so unfair as to amount to an abuse of power, citing R (on the application of Godfrey) v London Borough of Southwark [2012] EWCA Civ 500.