In determining an application for planning permission, the applicant’s fallback position is a material consideration to which the decision maker must have regard. That 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 weight to be attached to such a consideration is a matter wholly for the decision maker and not for the courts. In summary, the job of the decision maker is to weigh the degree of probability of the fallback position coming about, and the consequential harm, against the harm perceived to arise from the development for which planning permission is ought.
In R (on the application of Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 (Admin) the claimant sought to quash the decision of the local planning authority (“LPA”) to grant planning permission to a developer for the demolition of a garden centre and the construction of a retail park consisting of four units in its place. There was substantial evidence to show that some 4,500 square metres of floorspace within the garden centre had been used for very wide retail purposes for some considerable time. This was referred to in the officer’s report to the LPA’s planning committee as representing a fallback position, ie, the possibility of a development of similar size and planning use in any event being constructed on the site.
One of the claimant’s grounds of challenge was that the way in which the fallback position was taken into account erred in law. In particular, it argued that the planning committee had not been advised that they could only take the fallback position into account if there was a real prospect that it would come about.
The court dismissed that ground of challenge, referring to earlier authority in which it had been held that in this context “a real prospect” is used as the antithesis of “a merely theoretical prospect”. The judge pointed out that the prospect of the fallback position does not have to be probable or even have a high chance of occurring; it has to be only more than a mere theoretical prospect. Where the possibility of the fallback position happening was “very slight indeed” or merely “an outside chance” that was sufficient to make it a material consideration.
John Martin
