Jurisdiction(s):
United Kingdom

Court of Appeal (England and Wales) confirms LPAs can grant incompatible overlapping permissions; incompatibility not a mandatory material consideration (R (Fiske) v Test Valley BC)

Published on: 02 February 2024

Published by a LexisNexis Planning expert

Legal News

Article summary

R (on the application of Fiske) v Test Valley Borough Council [2023] EWCA Civ 1495 What are the practical implications of this case?

Overlapping planning permissions made the news after the Supreme Court’s decision in Hillside Parks [2022] UKSC 30, [2022] 1 WLR 5077 in late 2022, which prompted the sector across the industry as a whole to reassess how overlapping consents can continue to be implemented lawfully in practice. This Court of Appeal ruling addresses the stage before implementation, at issue: namely, whether an LPA may lawfully issue a permission that conflicts with an existing consent. It concludes that the answer is yes, with the court stressing that responsibility lies with the developer to assess any inconsistencies between consents and to decide how best to resolve them so as to avoid a breach of planning control. That message underscores the need to think carefully about the strategy for delivering overlapping permissions, particularly as the judgment recognises that large schemes commonly require changes during their lifespan, which then necessitate measures to overcome any resulting incompatibility. The difficulties that can arise in tackling incompatibility are illustrated by this judicial review brought by the same appellant, which challenged a 2022 decision notice...

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