The fact that the planning history of a site may be a material consideration in the determination of a planning application in respect of the site has given rise to what is known as the “fallback principle”. This requires that, in determining an application for planning permission, the decision maker must have regard to the applicant’s fallback position. 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 in this respect is to assess the degree of probability of the fallback position coming about, and then balance the consequential harm flowing from resort to it against the harm perceived to arise from the development for which planning permission is being ought. But his role does not end there.
In Lark Energy v Secretary of State for Communities and Local Government [2014] EWHC 2006 (Admin) the claimant sought to quash the decision of the Secretary of State, on a recovered planning appeal, to refuse planning permission for a 24MW solar farm on a site of about 46 hectares. The main issue in the appeal had been whether the benefits of the scheme, including the production of electricity from a renewable source, outweighed any harmful impacts, having particular regard to the effect upon the character and appearance of the countryside. The claimant had a fallback position, namely an extant planning permission for a 14MW solar farm on 29 hectares of the same site.
One of the claimant’s grounds of challenge was that the Secretary of State had failed to assess the appeal proposals on their own merits. He had merely balanced the disadvantages of those proposals, when compared with the development already permitted, against their advantages over that development. He had then concluded that the balance fell in favour of development already permitted. He should have considered whether the appeal proposals were nevertheless acceptable. The court rejected this ground, holding that on a fair reading of his decision letter the Secretary of State had not confined himself to a comparison between the two schemes. He had also considered the appeal proposals on their own merits.
John Martin
