High Court examines planning permission validity and drainage approval in Tudur Davies v Vale of Glamorgan Council

Citation: [2023] EWHC 3161 (Admin)
Judgment on


The High Court of Justice’s decision in Tudur Davies, R (on the application of) v Vale of Glamorgan Council ([2023] EWHC 3161 (Admin)) addresses two principal legal topics: the validity of a planning permission decision by the Vale of Glamorgan Council and the requirement for drainage approval under the Flood and Water Management Act 2010. The case engages with principles of statutory interpretation, the requirements for judicial review, and transitional provisions as they relate to construction work with drainage implications.

Key Facts

Dr. Tudur Davies, the claimant, sought judicial review of the Council’s decision to grant planning permission for the development of 34 dwellings on the site of a former school, which also raised issues concerning the conservation of local bat species. He challenged the Council’s decision on two points: the asserted inconsistency in decision-making regarding the construction of a 2-metre fence, and whether the development required drainage approval under the 2010 Act. His Honour Judge Keyser KC heard the case, with submissions provided by counsel for all involved parties excluding the second interested party, National Resources Wales, which remained neutral.

Ground 1: Planning Permission Decision Validity

The first ground of challenge hinged on whether the decision to grant planning permission was made under a misunderstanding concerning the construction of a 2-metre fence. It raised an essential issue pertaining to factual accuracy in decision-making and the centrality of transparent communication between planning applicants, consultees (NRW), and the Council. The court examined evidence from NRW’s consultations responses and the Committee’s understanding against the backdrop of what was communicated by the planning applicant, Hafod. The judge focused on the distinction between substantial changes to a planning application and minor amendments, referencing Holborn Studios Limited v The Council of the London Borough of Hackney [2017] EWHC 2823 (Admin) to affirm that planning amendments must remain within the substance of the original application.

Ground 2: Drainage Approval Under The Flood and Water Management Act 2010

The second legal question concerned whether the development required drainage approval under transitional provisions of the 2010 Act due to the subsequent amendment of the planning application. Specifically, the court weighed whether the Scheme was a “construction work in respect of which” the original planning application was made before the 2010 Act came into force. This assessment touched on the notion of “materiality” in changes to a proposed development, examining whether the amended proposal differed in principle from the original proposal for the purposes of the transitional provisions.


Permission for judicial review was denied on both grounds. For ground 1, Judge Keyser KC concluded that there was no basis to believe NRW misunderstood the implications of the label for a “2000mm high timber fence” since the consulted diagram indicated its removal. They determined that the Council and NRW did not have a misunderstanding regarding the fence which could impact the bat species’ conservation status.

For ground 2, Judge Keyser KC found that no decision specifically denying the necessity for drainage approval had been made by the Council. The judge consequently refused to grant a declaration as to whether the development demanded drainage approval under the 2010 Act, since the requirement for such a decision had not been triggered.

In his overview of substantive legal matters aside from the case determination, Judge Keyser KC implied a broader principle: the construction work for which planning permission is sought—and which has been subsequently amended—is considered under the transitional provisions if that work remains substantially the same as that initially applied for.


In Tudur Davies v Vale of Glamorgan Council, the court declined to judicially review the Council’s decision to grant planning permission and also refrained from determining whether the Scheme required drainage approval under the 2010 Act. Legally, the case confirms that the substantive nature of planning applications must remain consistent despite amendments for the purposes of transitional provisions, and that communication clarity across the consultation process is critical in planning decisions. The case also demonstrates the court’s reluctance to render advisory decisions on statutory interpretations when no precise decision related to the query has been made.