The planning history of an application site is capable of being a material consideration in determining an application for planning permission. The decision maker is, for instance, bound to have regard to what is known as the “fallback” position, namely what the applicant could lawfully do without the grant of further planning permission. 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. (This must clearly depend upon the individual facts of each case.) Furthermore, 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.
The planning history in Gambone v Secretary of State for Communities and Local Government [2014] PLSCS 66 was somewhat tortuous. The claimant had constructed a bungalow in the garden of his residential property, following the refusal of planning permission both by the local planning authority (“LPA”) and on appeal. He then appealed, unsuccessfully, against an enforcement notice issued by the LPA requiring its demolition. (The inspector rejected his argument that the unauthorised building constituted permitted development within Class E of Part 1 of Schedule 2 to the GPDO.)
The claimant then applied to the LPA for planning permission to retain the building for use as a workshop and gymnasium/games area ancillary to the main house, subject to internal and external changes. This was refused both by the LPA, and on appeal. (The inspector concluded that the claimant’s proposal was contrary to development plan policies and the NPPF.)
He then applied to the High Court to quash the inspector’s decision, contending primarily that the inspector’s approach to his fallback position – namely that if required to demolish the unauthorised building, he could replace it with a similar or less attractive structure compliant with Class E – was flawed.
The court rejected his challenge, holding that the inspector had applied the required fall-back test and correctly assessed what that fallback might be. He had been entitled to conclude that there was no significant probability of the fallback occurring.
John Martin is a planning law consultant
