R (Fiske) v Test Valley Borough Council
Public Law and Judicial Review, Planning and Environment
The Court of Appeal has, this afternoon, handed down judgment in R (Fiske) v Test Valley Borough Council [2023] EWCA Civ 1495. The Court dismissed Ms Fiske’s appeal, concluding that, when granting planning permission for a substation, the local planning authority was not obliged to have regard the incompatibility between that permission and a permission for a solar farm which the substation was designed to serve.
The Court held that the incompatibility between the two permissions, whilst obvious, was not “obviously material”. The planning system “does not preclude the possibility of a number of applications for planning permission being made and granted for different developments on the same site.” It is not unusual for large developments, such as this, to require changes in the course of their design and construction. Where that results in two or more incompatible permissions there may or may not be lawful steps the developer can take to overcome the incompatibility. However, the “local planning authority is not legally compelled to anticipate how the developer might later choose to deal with such inconsistencies, or to assume that he will resort to unlawful means of doing so. That is not the authority’s job.”
This case underscores that it is for the developer, and not the local planning authority, to consider whether there are any inconsistencies between permissions and, if so, to determine how best to address them in order to avoid a breach of planning control.
Robin Green and Robert Williams were instructed for the Borough Council. The judgment is available here.
