Chala Alice Fiske, R (on the application of) v Test Valley Borough Council

A planning authority is not generally required to treat incompatibility between an existing planning permission and a later permission for a different scheme as an obviously material consideration. The fact that permissions are associated, mutually inconsistent, or may make one scheme incapable of lawful implementation does not itself create a mandatory duty to consider the inconsistency. The authority must assess the proposal on its own planning merits and need not speculate that a developer will act unlawfully. A planning officer’s report is read fairly and as a whole. It need explain the relationship between schemes but need not analyse their incompatibility or possible solutions. Procedural unfairness is not established where the issue was raised, evidence was admitted without objection, and the parties had a fair opportunity to make submissions.

The appellant challenged the council’s grant of planning permission for a 132kV distribution network operator substation and associated solar development. The permission was intended to connect a solar park previously approved under a 2017 permission, but the two schemes were inconsistent in their layout and substation design. A previous section 73 permission had been quashed.

The appellant argued that the incompatibility, and the risk of a future breach of planning control, were mandatory material considerations. She also alleged that the judge below had acted unfairly by seeking further information about options for completing the development. The High Court dismissed the claim under [2022] EWHC 1111 (Admin). The central issue before the Court of Appeal was whether the incompatibility was so obviously material that the council was legally required to consider it.

The Court of Appeal, in the judgment of Sir Keith Lindblom, with Lord Justice Coulson and Sir Launcelot Henderson agreeing, dismissed the appeal.

1. Mandatory material considerations. Under section 70(2) of the Town and Country Planning Act 1990, a local planning authority must have regard to material development plan provisions and other material considerations. A consideration is mandatory only where legislation or policy expressly or impliedly requires it to be taken into account. The obviously material route is subject to the familiar Wednesbury irrationality test. It is insufficient that a matter might realistically have made a difference.
2. Inconsistent permissions. The planning system permits applications and grants for different, even mutually inconsistent, developments on the same site. The incompatibility between the earlier solar-park permission and the later substation permission was obvious, but that did not make it an obviously material consideration. The permissions could coexist, and any later difficulty in implementation could be addressed through the ordinary planning process, including a further permission under section 70 or section 73 of the Town and Country Planning Act 1990.
3. Developer conduct and enforcement. The council was not required to speculate about how the developer would reconcile the permissions or to assume that it would act unlawfully. The planning system carries a general presumption that it will function lawfully. If a breach occurred, the council could use its enforcement powers under Part VII of the Town and Country Planning Act 1990.
4. Officer’s report. A planning officer’s report must be read fairly and as a whole. The report adequately explained the relationship between the permissions, the purpose of the substation, and the established planning principle of a solar park on the site. The committee was not misled, and the officer was not required separately to analyse the incompatibility or explain how it might be resolved.
5. Fairness and relief. The judge’s request for clarification about the available development options did not alter the substance of the issue raised, particularly as the council had relied on those options throughout and evidence had been admitted without objection. No unfairness or serious procedural irregularity arose under the Civil Procedure Rules 1998 r.52.21(3). Since the claim had no legal merit, it was unnecessary to decide whether relief would also have been refused under section 31(2A) of the Senior Courts Act 1981.

• Court of Appeal (Civil Division) dismissed the appeal on 15 December 2023.
• High Court of Justice, King’s Bench Division, Planning Court dismissed the judicial review claim in an order dated 27 May 2022: [2022] EWHC 1111 (Admin).