The planning history of an application site can be a material consideration in deciding whether to grant planning permission. The decision maker is, for instance, bound to have regard to what is known as the fall-back position, namely what the applicant could lawfully do without the grant of further planning permission. This issue frequently arises in the case of enforcement notice appeals where the ground of appeal set out in section 174(2)(a) of the Town and Country Planning Act 1990 – namely that planning permission ought to be granted – is relied on.
In Simpson v Secretary of State for Communities and Local Government [2011] EWHC 283 (Admin) the local planning authority (LPA) had served an enforcement notice on the appellant. The primary breach of planning control that the LPA alleged was a change of use of the site to use for the permanent mooring of a vessel on which the appellant lived. An inspector upheld the enforcement notice on appeal. The appellant challenged that decision under section 289 of the Act. He contended that the inspector had erred in law, in respect of the section 174(2)(a) ground, by his failure to take into account as a material consideration the appellant’s fall-back position. As advanced at the inquiry, this was that the appellant was already entitled in planning terms to moor the vessel at the site and the removal of residential use would not result in the removal of the vessel. The visual effect, which was the LPA’s main concern, would remain unchanged.
The court dismissed the appeal. It held that the inspector had been entitled to conclude that there were no established use rights for the general mooring of vessels at the site and that the fall-back contention had therefore failed. What is particularly useful in practical terms is the judge’s reminder that two elements must be established before a fall-back position can be brought into the evaluation. The first is the nature and content of the alternative uses or operations. The second is the likelihood of them being carried on or carried out. With regard to the latter, it would be Wednesbury unreasonable, unless the alternative uses or operations were a realistic possibility, to treat the harm that would result from them as a reason for granting planning permission. Furthermore, the degree of likelihood of them being carried on or carried out was of itself a material consideration.
John Martin is a freelance writer
