THE QUEEN (on the application of CHALA ALICE FISKE) v TEST VALLEY BOROUGH COUNCIL

Incompatible planning permissions may be granted, allowing a developer to choose which permission to implement. Where an earlier permission has been implemented, the authority must consider whether the later development can still be carried out having regard to what has been done or authorised under the earlier permission. However, the possibility that a developer may later create a breach of planning control is not automatically a material consideration. It must be legally required by statute or policy, or be so obviously material that it demands direct consideration. A developer’s evolving options for reconciling permissions may remain matters for the developer rather than matters for the authority to determine speculatively. The challenge to the later permission therefore failed.

The claimant sought judicial review of the defendant local planning authority’s grant of planning permission in 2021 for a larger electricity substation compound associated with a solar park previously permitted in 2017. The 2021 permission was incompatible with the earlier permission because implementation of both as permitted would prevent completion of the 2017 development in accordance with its approved plans.

The claimant argued that the authority had failed to consider the incompatibility, the potential breach of planning control, and the consequences for the development. The authority contended that the developer had lawful options, including proceeding under the 2017 permission, seeking a variation, or applying for a composite permission. The central issue was whether those potential consequences were material considerations which the authority was legally obliged to address.

1. Claim dismissed. The authority was not legally required to grapple with the potential incompatibility between the 2017 and 2021 permissions.
2. The principles concerning successive incompatible permissions were established in the authorities summarised by the court. There is no general objection to granting incompatible permissions. After the first permission has been implemented, the relevant question is whether the later development can be carried out having regard to what has been done or authorised under the first permission. Development which makes completion of the original permission impossible may itself be unlawful, while the reasoning in Sage does not make an incomplete but otherwise conforming building wholly unlawful.
3. Under section 70(2) of the Town and Country Planning Act 1990, the authority had to have regard to the development plan and other material considerations. The authority is compelled to consider an issue only where statute or policy identifies it as required, or where it is so obviously material that direct consideration is necessary.
4. The potential incompatibility was neither required by statute or policy nor so obviously material to the character of the 6.78-hectare site that it had to be addressed. The evidence showed that the developer had several possible routes to development without a breach, and it was for the developer to decide how to proceed.
5. The assumption that the developer would implement the permissions so as to cause a breach was unjustified. The parties were directed to submit a draft order and any written submissions on permission to appeal or extensions of time within 14 days.