Introduction

The case of Fiske, R (On the Application Of) v Test Valley Borough Council ([2023] EWCA Civ 1495) addresses whether a local planning authority (LPA) erred in law when granting planning permission for a distribution network operator's (DNO) substation intended to connect a proposed solar park to the national grid. Specifically, the case examines if the LPA failed to regard an "obviously material" consideration by not considering the incompatibility of the current planning permission with a previously granted permission for the solar park itself. The appellant, Chala Fiske, challenged the council's decision to approve the construction of a 132kV substation on Woodington Farm, East Wellow, arguing that the council should have recognized the conflict between the new substation permission and the existing solar park permission.

The judgment is pivotal in interpreting the scope of "material considerations" within the planning permission framework, potentially setting a precedent for how LPAs evaluate conflicting planning permissions.

Summary of the Judgment

The Court of Appeal dismissed the appeal brought by Chala Fiske against Test Valley Borough Council's decision to grant planning permission for the 132kV substation development. The court upheld the original decision, concluding that the incompatibility between the 2021 substation permission and the 2017 solar park permission was not an "obviously material" consideration that the LPA was legally obligated to address. The council's decision was deemed lawful, as it had adequately assessed the planning merits of the substation proposal without being compelled to consider the potential incompatibility with the existing solar park permission.

Analysis

Precedents Cited

The judgment extensively references established case law to underpin its reasoning:

• Westminster City Council v Great Portland Estates Plc [1985] AC 661 - Defined the scope of "material considerations" in planning decisions.
• Pilkington v Secretary of State for the Environment [1973] 1 W.L.R. 1527 - Addressed the handling of conflicting planning permissions.
• Hillside Parks Ltd. v Snowdonia National Park Authority [2022] UKSC 30 - Confirmed the principles from Pilkington regarding incompatible permissions.
• R. (on the application of Wright) v Forest of Dean District Council [2019] UKSC 53 - Discussed "planning purpose" considerations.

Legal Reasoning

The court employed a detailed analysis of statutory provisions and case law to determine whether the LPA had a legal duty to consider the incompatibility of the two planning permissions:

• Material Considerations: Referring to the "Wednesbury" test, the court examined if the incompatibility was so obvious that its omission constituted an error of law.
• Planning Permissions Incompatibility: Drawing from Pilkington and Hillside Parks, the court clarified that the existence of incompatible permissions does not inherently render any of them unlawful unless one makes implementing the other impossible.
• Council's Duty: The LPA was not legally compelled to anticipate or mitigate future breaches of planning control arising from conflicting permissions.

The court emphasized that while the permissions were incompatible, this did not automatically necessitate the LPA's intervention unless it could be demonstrated that the incompatibility directly impacted the planning merits of the new application.

Impact

This judgment reinforces the autonomy of LPAs in evaluating planning applications based on their individual merits without being obligated to reconcile or consider every potential conflict with existing permissions. It underscores that "material considerations" must align strictly with statutory obligations or be "obviously material" to the planning purpose. Consequently, future cases may lean on this precedent to argue that LPAs are not required to address every inconsistency between planning permissions unless such inconsistencies directly undermine the planning merits of a new application.

Complex Concepts Simplified

Material Considerations

In planning law, "material considerations" are factors that a decision-maker must consider when granting or denying planning permission. These include statutory provisions, development plans, and any other relevant factors that influence the planning merits of a proposal.

Obviously Material Considerations

An "obviously material" consideration is one so evidently pertinent to the planning decision that failing to consider it would constitute an error of law. This determination often employs the "Wednesbury" test, assessing whether the omission is so glaringly unreasonable that it overturns the decision.

Wednesbury Irrationality

Originating from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, the Wednesbury test evaluates whether a decision is so unreasonable that no reasonable authority could have made it. In this context, the court assesses if the LPA's failure to consider certain factors meets the threshold of being irrational.

Incompatibility of Planning Permissions

This concept refers to situations where two or more planning permissions granted for the same land are conflicting in nature. The critical question is whether these conflicts render one or more permissions unlawful, especially if their coexistence makes it impossible to implement both successfully.

Conclusion

The Court of Appeal's decision in Fiske v Test Valley BOR Council provides clear guidance on the boundaries of "material considerations" in planning decisions. By affirming that the LPA was not legally required to consider the incompatibility of the 2017 and 2021 planning permissions as an "obviously material" factor, the judgment delineates the scope within which LPAs operate. This decision emphasizes the necessity for material considerations to be directly relevant and clearly mandated by statutory provisions or established legal principles. Consequently, LPAs retain significant discretion in assessing planning applications on their own merits without the obligation to reconcile all potential conflicts with existing permissions, unless such conflicts directly impinge upon the planning merits or compliance of the new application.

This ruling underscores the importance for applicants challenging planning decisions to demonstrate that omissions in material considerations meet the high threshold of being "obviously material" to constitute an error of law. It also reinforces the expectation that LPAs will function within the confines of established legal parameters, ensuring that planning control remains robust yet flexible.