Following the Supreme Court judgment in Hillside in November 2022, the industry has been getting to grips with how to ensure masterplan consents can be lawfully implemented in circumstances where there has been a detailed planning history involving drop in consents and resulting incompatibility. In the last couple of months, we have finally received some further judicial guidance on this. 

In December 2023, the Court of Appeal in R (on the application of Fiske) v Test Valley Borough Council [2023] EWCA Civ 1495 dismissed an appeal relating to an earlier High Court decision that it was a developer’s responsibility to resolve any incompatibility between consents and that a local planning authority  (LPA) could lawfully grant a permission which was inconsistent with an earlier permission.  The Court of Appeal agreed that the LPA was not obliged to have regard to the incompatibility and that there was nothing in established case law, namely Pilkington and Hillside Parks, to suggest that the incompatibility was obviously material to the determination process. 

This reinforces the importance for developers to properly consider the strategy for implementing overlapping consents. An example of where difficulties can arise is another challenge brought by the same appellant. The High Court in R (Fiske) v Test Valley Borough Council [2023] EWHC 2221 (Admin) held that a LPA  does not have the power under section 73 to introduce a condition which creates a conflict with the operative wording of the existing original planning permission, although it is worth noting that an application for permission to appeal is pending.

In January 2024, Holgate J in  R (Dennis) v LB Southwark [2024] EWHC 57 (Admin) considered whether a phased outline planning permission was severable or not. If it was considered severable, then adding the words “severable” into the definition of development via a s96A application would have been lawful, but if it was not, then the change would have been material. Holgate J held that “there is no contra-indication, let alone a clear indication, that the OPP was severable”. This suggests that such a change would be considered material, but it may also fall outside the scope of s.73 if a change was required to the description of the development to accommodate the amendment. This may be more straightforward for a fresh application, however our view is that granting a truly severable consent over a multi-phase development is likely to require an assessment of every combination of the phases being carried together or separately, and given the Hillside backdrop, is likely to be subject to scrutiny and potentially challenge. The practical result of this judgment is that it is not possible to “retro-fit” severability onto a planning permission, to ensure Hillside compliance, without a clear indication that the consent was, in fact, severable.

We look forward to seeing how this continues to pan out in 2024 in the Courts and the timescale for new s73B being brought into force under the LURA 2023. In the meantime, please do not hesitate to contact Alex Minhinick, Cathryn Tracey, Matthew Tucker or me for advice on any issues relating to the incompatibility of consents.