Fallback principle Decision-makers must have regard to what the applicant could do without planning permission
Key points |
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| The applicant’s fallback position is capable of being a material consideration |
| However, there must be a realistic possibility of resort to it |
The fallback principle requires the decision-maker, in determining an application for planning permission, to have regard to what the applicant could do without the planning permission sought. This is capable of being a material consideration.
The applicant’s fallback position may be the implementation of an extant planning permission, the resumption of previous activities or even the exercise of GPDO rights. However, it is established law that the prospects of there being resort to the fallback position must be real and not merely theoretical, and that the assessment of those prospects and the weight to be attached to them is a matter wholly for the decision-maker and not for the courts.
In this latter respect, the deputy judge in South Buckinghamshire District Council v Secretary of State for the Environment [1998] EWHC 656 (Admin) made the following helpful statement:
“In my judgment where, as in the present case, the decision-maker is deciding whether planning permission for the development applied for should be granted in order to avoid the greater harm that would result from the resumption of some particular lawful use of the application site, it is inescapably necessary that he should consider the likelihood of such resumption taking place.
“This is so, it seems to me, for two reasons. Firstly, unless the resumption of the use is a realistic possibility, it would be Wednesbury unreasonable to treat the harm that would result from such resumption as a reason for granting permission for the new development. Secondly, the degree of probability of the use being resumed will, or at least may, be a material consideration, to be weighed by the decision-maker along with the harm that the use would cause and the other pros and cons of the new development proposed.”
He went on to add:
“The assessment of the probability and the weight to be attached to it in the overall planning judgment, however, are matters for the decision-maker.”
The job of the decision-maker, therefore, is to weigh the degree of probability of the fallback position being implemented, and the harm arising from it, against the harm perceived to arise from the development proposals.
In Coln Park LLP v Secretary of State for Communities and Local Government [2011] EWHC 2282 (Admin) the developer of a large country water park, which was intended to include holiday cabins, a hotel and leisure facilities, had constructed two hard-surface tennis courts and a number of car parking spaces on an expanse of meadowland without planning permission. This resulted in the local planning authority both issuing an enforcement notice and refusing an application by the developer for retrospective planning permission.
On appeal, the inspector upheld the enforcement notice and also refused planning permission. The developer applied to the High Court to quash the inspector’s decision. Its principal ground was that the inspector’s conclusion that the implementation of an extant planning permission, as a fallback, was extremely unlikely was a flawed conclusion. His reasons for the conclusion were both inadequate and unreasonable.
The extant planning permission in question allowed the developer to construct the hotel and the leisure facilities on the meadowland, a much more intensive development. (It also enjoyed planning permission, in the alternative, to construct these on a separate site.) Were the meadowland chosen, then on any view it was accepted that this would be far less desirable than allowing the tennis courts and parking spaces to remain.
The developer in its grounds of appeal did not raise this fallback position, but it did arise at the inquiry in cross-examination and in the parties’ final submissions. The inspector had simply concluded, on no identifiable evidence, that the implementation of that extant planning permission was extremely unlikely and gave it little weight as a realistic fallback position. His only stated reason for this conclusion was the scale of the tennis courts relative to the hotel and the leisure facilities.
The judge pointed out that it was common ground that the correct test to be applied in considering a fallback argument is whether there is a reasonable possibility that if planning permission were to be refused, use of land or a development that has been permitted would take place and such use or development would be less desirable than that for which planning permission is sought. However, he ruled that the inspector could and should have explained more clearly why he rejected the fallback argument.
Accordingly, the court quashed the refusal of retrospective planning permission and remitted the enforcement notice to the secretary of state for reconsideration, holding that the inspector had erred in law by reaching his conclusion in the way that he did.
Martin Edwards is a specialist planning barrister in 39 Essex Street Chambers and John Martin is a freelance writer
