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

The Court of Appeal dismissed the appellant's challenge to the council's grant of planning permission for a 132kV substation on the basis that the incompatibility between that permission (the 2021 permission) and an earlier planning permission for a larger solar park (the 2017 permission) was not an "obviously material" consideration which the council was legally obliged to take into account. The court applied well‑established principles on material considerations, including the requirement that only matters expressly or impliedly identified by statute (or those so "obviously material" under the Wednesbury test) are mandatory. It followed Pilkington and Hillside Parks in holding that mere inconsistency between permissions does not of itself prevent a planning authority granting a further permission, and that the risk of a future breach of planning control by the developer was not a mandatory material consideration. The court also rejected procedural unfairness and found that the planning officer's report adequately explained the relationship between the permissions and the committee lawfully assessed the proposal on its planning merits.

This appeal arose from a judicial review claim challenging Test Valley Borough Council's grant of full planning permission in May 2021 for a 132kV substation and associated development on part of a site previously granted permission for a solar park in July 2017. The appellant sought to quash the 2021 permission on the principal ground that the council failed to take into account an "obviously material" consideration: the incompatibility of the 2021 permission with the earlier 2017 permission and the consequential risk of a breach of planning control.

Background and procedural posture:

• 2017 permission (ref. 15/0259/FULLS): full permission for a 72 hectare solar park including a 33kV substation; condition required approval of substation details before commencement.
• 2019: a section 73 permission for a 132kV substation was granted and later quashed by consent in separate proceedings.
• 2021 permission (ref. 20/00814/FULLS): full permission for a 132kV substation and solar panels on a smaller 6.78 hectare area; the proposed compound differed in siting and scale from the substation shown under the 2017 permission.
• The appellant sought judicial review of the 2021 permission; HHJ Jarman KC dismissed the claim ([2022] EWHC 1111 (Admin)). Permission to appeal to the Court of Appeal was granted by Nugee L.J.

Issues framed by the court:

1. Whether the incompatibility between the 2017 and 2021 permissions was a "mandatory material consideration" that the council was obliged to address when determining the 2021 application.
2. Whether the judge in the court below mis‑framed the issues, relied on ex post facto justification, or procedurally disadvantaged the claimant.

Court's reasoning and conclusion:

• The court reiterated the statutory framework (including sections 70 and 73 of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004) and the settled law on material considerations, relying on authorities such as Westminster City Council v Great Portland Estates, Pilkington and Hillside Parks. The test for a matter to be "obviously material" is the Wednesbury irrationality standard.
• The court held that the planning system permits multiple, potentially inconsistent permissions and that mere incompatibility between permissions does not, of itself, create a mandatory material consideration requiring the authority to refuse or to address the earlier permission when considering a fresh application. The council had properly informed members of the association between the two permissions and lawfully judged the 2021 proposal on its planning merits.
• The possibility that a developer might act unlawfully so as to implement incompatible permissions was not an "obviously material" factor requiring the committee's consideration; enforcement powers exist if unlawful action occurs.
• The appeal was dismissed. The court also found no unfairness in the conduct of the hearing below or in the judge's handling of supplementary questions.

Appeal dismissed. The Court of Appeal held that the incompatibility between the 2017 and 2021 planning permissions was not an "obviously material" consideration which the local planning authority was legally required to take into account; the committee had been sufficiently informed about the relationship between the permissions and lawfully assessed the 2021 application on its planning merits. The risk of a future breach by the developer was not a mandatory material consideration and the procedural fairness complaint failed.

Appeal from the High Court of Justice, King’s Bench Division, Planning Court (HHJ Jarman KC) [2022] EWHC 1111 (Admin). Permission to appeal to the Court of Appeal was granted by Nugee L.J. after an oral hearing.