Planning Court judge rejects challenge to grant of planning permission for development at former school

One ground argued in a planning case concerning Vale Of Glamorgan Council was “completely hopeless” and another concerned a non-existent decision, HHJ Keyser KC, sitting as a judge of the High Court, has found.

The case was brought by a local resident, who objected to the council giving planning consent to housing association Hafod Housing for 34 homes at the 0.53 hectares site of the former Cowbridge Comprehensive School.

The claimant sought judicial review of both the decision to grant planning permission and the decision to decline to find that drainage approval would be required under the Flood and Water Management Act 2010.

He argued planning permission was granted on a false or inconsistent basis, because in the course of various revisions to the scheme a two metre fence along the western side of the proposed car park would not be erected, and that a species licence would be granted as the scheme would not harm the conservation status of bat species.

The claimant said regulator National Resources Wales (NRW)’s objection to the scheme had been resolved only on the basis that the fence would be constructed to prevent harm to bats.

He further maintained there was a legal requirement for drainage approval under the 2010 Act, because the scheme did not comprise construction work for which the council had received a valid application for planning permission before 7 January 2019.

HHJ Keyser said in his judgment the ground concerning the fence was “completely hopeless”.

He said: “There is no reason to imagine that there was any misunderstanding on the part of NRW, which was concerned with the bat corridor and paid meticulous attention to the finest details of the scheme as it might affect the bats.

“No plan provided to NRW…showed the fence. Not one of NRW's consultation responses refers to the fence. NRW's decision to withdraw its objection was on the basis of Revision E and the [consultancy] Soltys Brewster’s ecology response letter.”

The judge added: “I regard NRW's decision not to become involved in these proceedings as significant. NRW was a statutory consultee. If it considered that it had been misled, or that the council had proceeded on the basis of a misunderstanding of its advice, it would have said so as a responsible public body.”

Turning to the drainage point, HHJ Keyser said: “The fundamental problem with [this] ground is that it does not relate to any decision.”

The claim form sought judicial review of two decisions, the second of which was "to decline to find that drainage approval would be required” under the 2010 Act.

“However, there was no such decision,” HHJ Keyser said. “The council had received only an application for planning permission. It did not have before it any application for drainage approval. It did not make or purport to make or decide not to make any decision in respect of drainage approval. The most that can be said is that the planning officer gave oral advice to the planning committee to the effect that the requirement of drainage approval did not apply. Whether that advice was right or wrong, it did not constitute a decision of the council and was not reflected in any decision of the council.”

The judge refused to make an advisory declaration as “the evidence before me does not enable any assessment of the materiality of the difference between the drainage implications of the original proposal and the drainage implications of the scheme”.

Mark Smulian