Tudur Davies, R (on the application of) v Vale of Glamorgan Council

A judicial review claim must identify an actual decision or failure to act that is susceptible to review. A court may make an advisory declaration, but it need not determine a statutory question where the relevant statutory function has not been engaged and the evidence is insufficient to resolve the issue. For transitional sustainable-drainage provisions, the relevant question is whether the approved construction work was covered by a valid planning application received before the commencement date. Where a later proposal is accepted as a valid amendment, it is likely to be treated as work in respect of which the original application was made, because a valid amendment is not, in substance, a different development for planning purposes.

The claimant challenged the Council’s grant of planning permission for a housing development on the site of a former school. He alleged that the Planning Committee misunderstood the basis on which Natural Resources Wales had withdrawn its objection concerning bats and a proposed western boundary fence. He also sought a declaration that the development required sustainable-drainage approval under the Flood and Water Management Act 2010.

The original planning application had been submitted before 7 January 2019, but the approved scheme was substantially revised and accepted by the Council as an amendment. The issues were whether either ground justified judicial review and whether the court should determine the statutory drainage question.

1. Ground 1 dismissed. The material drawing available to Natural Resources Wales did not show the timber fence. Although it retained a label referring to such a fence, the drawing stated that the fence and brick wall had been removed. The consultation response and supporting ecological material showed that Natural Resources Wales had based its position on the documents actually submitted, none of which showed or mentioned the fence. There was therefore no proper basis for concluding that the Council and the statutory consultee had proceeded on a misunderstanding. The Council’s decision was not unlawful on this ground.
2. Ground 2 dismissed. The claim did not challenge an actual decision concerning drainage approval. The Council had received only a planning application, had not received an application for drainage approval, and had neither made nor refused a drainage decision. Oral advice from a planning officer did not constitute a decision of the Council. The court therefore refused permission on this ground.
3. The court had power to make an advisory declaration but declined to do so. The Council’s planning and drainage functions were separate, the drainage function had not been engaged, and the evidence did not permit assessment of whether the amended scheme had materially different drainage implications from the original proposal.
4. Preliminary view only. The court considered that the scheme clearly involved construction work with drainage implications under Schedule 3 to the Flood and Water Management Act 2010. The transitional provisions turned on the date of a valid planning application. Since the scheme had been accepted as a valid amendment, and a valid amendment is not in substance a different development for planning purposes, the better view was that it was construction work in respect of which the original application had been made. This reasoning was expressly stated not to form part of the decision.

Permission was refused on both grounds.