Can a Fallback Position help secure Planning Permission?
In short the answer to whether a fallback position can help secure planning permission is YES. This article provides some basics on what a fallback position is, how to achieve it and how it can be used.
What is a Fallback Position?
A ‘fallback position’ is what is a development or use which is likely to occur if the planning permission is refused, for example a development which is already permitted or can be built under permitted development rights359.
In a Court of Appeal Judgement Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314, Lindblom LJ confirmed the legal considerations in determining the materiality of the ‘fall back’ position as a planning judgement were as follows:
– The basic principle is that for a prospect to be a real prospect it does not have to be probable or likely, a possibility will suffice.
– There is no rule of law that in every case the ‘real prospect’ will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (The GPDO). In some cases, that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker’s planning judgement in the particular circumstances of the case in hand.
Why is a Fallback Position Useful?
A fallback position is a valuable material consideration when a decision maker (the Local Planning Authority or Planning Inspectorate) assesses the merits of any planning proposal. A fallback position can be used as leverage to secure planning permission. However as highlighted above there must be a realistic and not just a theoretical prospect of the fallback position being an alternative.
Where there is a realistic fallback position, it’s essential that the decision maker compares the effect of a proposal against the effect of what other development could lawfully take place.
The question that a decision maker will ask is if planning permission were to be refused, and the ‘fallback’ would take place would it be less desirable than that for which permission is sought. Or would there be a noticeable difference between the two proposals, if not then what would actually be the harm in the planning permission being approved?
How do I establish a Fallback Position?
For an alternative development to be considered to have a high chance of occurring evidence can be submitted to confirm this. For instance, if a site has planning permission for a development which is less desirable this can be used as a realistic alternative. Or if a development could be built under permitted development rights, a Certificate of Lawfulness could be secured for a proposed development. However as established in the Mansell Court of Appeal case sometimes exercising common sense without evidence of a fallback position will suffice.
Notwithstanding if a fallback position is available establishing it will be beneficial as there can be little dispute as to whether it’s realistic. As an example Planning House secured a positive appeal decision by providing a fallback strategy which included a certificate of lawfulness for an alternative development which could be implemented without permission. Take a look at our articles on this scheme: Planning Success – Establishing a Fallback Position and Planning Success – Granby Leicester.
Related Content
We’ve published a Practical Guide for Certificate of Lawful Proposed Use or Development (CLPUD also known as a CLOPUD) covering the basics of the process for when you find yourself in a position when you’re looking to secure a fallback position.
More information for you is available in our series of eBooks and Practical Guides which cover everything from the very basics of town planning to application processes and what developers need to consider.
However if you need assistance then don’t hesitate to Contact Us for a free initial consultation with one of our amazing Team
If you’re not sure if you need help from a Town Planner take a look at blog on When to Hire a Town Planner our download a Guide on How to Choose a Town Planner.
