Town and country planning – Planning permission – Solar park – Respondent local authority granting interested party planning permission for solar park and substation – Permission quashed by consent and respondent granting permission for smaller development – Appellant applying for judicial review – High court dismissing application – Appellant appealing – Whether incompatibility of schemes mandatory material consideration when determining application for permission – Appeal dismissed
In July 2017, the respondent local authority granted the interested party planning permission for the development of a solar park at Woodington Farm, East Wellow. That development included a 33kV substation. In July 2019, it granted planning permission under section 73 of the Town and Country Planning Act 1990, approving a 132kV DNO substation compound. That permission was later quashed by consent.
On 24 May 2021 the council granted permission for a 132kV substation and other development, including solar panels, on a much smaller area of land within the site of the 2017 permission. The appellant applied for judicial review of that decision. On 27 April 2022, the day before the hearing of the application, a further planning permission was granted under section 73 to vary several conditions attached to the 2017 permission, and thus avoid any inconsistency between the development approved under the 2017 permission and that approved under the 2021 permission. The 2022 permission was also the subject of challenge by a claim for judicial review, and was quashed by Morris J: [2023] EWHC 2221 (Admin); [2023] PLSCS 156.
The High Court dismissed the appellant’s application for judicial review of the decision of the 2021 decision: [2022] EWHC 1111 (Admin). The appellant appealed. The issue was whether the respondent erred in law by failing to have regard to an “obviously material” consideration by not taking into account the incompatibility of that planning permission with the permission previously granted for the solar park itself.
Held: The appeal was dismissed.
(1) The test of what was a material “consideration” in the control of development was whether it served a planning purpose related to the character of the use of land. Short of irrationality, the question was one of statutory construction. It was necessary to show that the matter was one which the statute expressly or impliedly required to be taken into account as a matter of legal obligation. The test to be applied in determining whether a consideration was “so obviously material” was the Wednesbury irrationality test.
Where two separate applications were granted in respect of the same site, and one of them was then implemented, the question arose whether it was lawful to carry out the development contemplated by the other permission. The test was whether it was physically possible to carry out the development proposed in the second permission, having regard to that which was done or authorised to be done under the permission which had been implemented: Pilkington v Secretary of State for the Environment [1973] 1 WLR 1527 and Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1984] 2 EGLR 183; [1985] 1 AC 132 considered.
What mattered was whether it was physically possible to carry out the development authorised by the terms of the unimplemented permission. That depended upon the terms of the unimplemented permission and what works had actually been done. Mere inconsistency between the two permissions did not prevent the second permission from being implemented. What had to be shown was that development in fact carried out made it impossible to implement the second permission in accordance with its terms. Failure or inability to complete a project for which planning permission had been granted did not make development carried out pursuant to the permission unlawful. But (in the absence of clear express provision making it severable) a planning permission was not to be construed as authorising further development if at any stage compliance with the permission became physically impossible: Hillside Parks Ltd v Snowdonia National Park Authority [2022] UKSC 30; [2023] EGLR 4 applied.
(2) In the present case, the central question was whether the incompatibility of the two proposals was a matter the respondent was bound in law to take into account when considering the application for planning permission in May 2021. The fact that the differences between the two proposals were obvious when the challenged decision was taken did not mean that their incompatibility was “obviously material” and thus a mandatory material consideration in the respondent’s decision. The planning system did not preclude the possibility of several applications for planning permission being made and granted for different developments on the same site. It accepted the granting and co-existence of mutually incompatible permissions, one or more of which might prove incapable of lawful implementation, whether in whole or in part, unless the incompatibility could be defeated by a further grant of permission under section 70 or 73 of the1990 Act: Pilkington considered.
The fact of the 2017 permission being expressly “associated” with the application for the 2021 permission did not make the incompatibility between the two permissions “obviously material”. Such incompatibility did not nullify or prevent the implementation of either the 2017 or the 2021 permission. It did not negate the principle of a solar park development on the site, which the 2017 permission had established. Nor did it go to the intrinsic planning merits of the substation proposal that the committee was now considering.
(3) It was clear from the planning officer’s report that the committee understood how the application it was determining related to the 2017 permission. It knew the two proposals were “associated”. It was aware that the proposal it was now considering had been submitted to enable the solar park to function effectively with a connection to the national grid. And they unquestionably assessed the planning merits of the proposal without failing to have regard to any mandatory material consideration arising from the relationship between it and the development for which planning permission had already been granted.
The officer’s report provided a legally adequate explanation of the relationship between the 2017 permission and the application before the committee. The officer was not obliged to explain the incompatibility between the two proposals as a mandatory material consideration. Her planning assessment, accepted by the committee, was not legally flawed by a failure to identify the inconsistencies, or to say how they might be tackled. It was not incumbent on her to do either.
James Burton (instructed by Lewis Silkin LLP) appeared for the appellant; Robin Green and Robert Williams (instructed by Sharpe Pritchard LLP) appeared for the respondent; the interested party did not appear and was not represented.
Eileen O’Grady, barrister
Click here to read a transcript of R (on the application of Fiske) v Test Valley Borough Council
