The basics #5 - something to fall back on
What is a “fall-back” option? When is it “material”?
In last week’s happy melee of new laws and guidance (heroically summarised here by Simon Ricketts), spare a thought and just 2 minutes - if you have them - for some #planoraks basics.
After all, once we emerge from lockdown to whatever comes next, one thing’s for sure. The landscape will have changed - I talked about that here. One-time aspirations for a site may have moved on. A planning permission which seemed deliverable in January may seem pie-in-the-sky come September. Or the more optimistic converse - what was undeliverable in January may become possible after changes which may come to planning policy and guidance over the next few months.
Our plans may need re-thinking. And when we come to re-thinking them, it will be important understand the worth of what we already have. Our “fall-back” options.
What, in a nutshell, do the cases say about “fall-backs”? When are they material? How much weight should they attract in the planning balance?
Here are 5 headlines:
The “fall-back” position = what an applicant can do without any fresh planning permission.
To weigh the fall-back in the planning balance, the decision-maker should consider 3 things (R. v Secretary of State for the Environment Ex p. PF Ahern (London) Ltd [1998] Env. L.R. 189 - too old for a Bailii hyperlink ☹️):
(i) is there a legal fall-back use, i.e. can the applicant lawfully undertake the use without any new planning permission;
(ii) is there a real prospect of the use occurring; and
(iii) if the answer to (ii) is “yes”, compare the proposed development to the fall-back use.
What’s a real prospect? The fall-back doesn’t have to be probable or even likely. A mere possibility of the fallback happening is enough: Sam Smith.
The courts have repeatedly emphasised that fall-back cases are highly fact-specific, and the role of planning judgment is vital: Mansell. Which makes this a difficult area for those interesting in launching a legal challenge.
The fundamental question for the decision-maker, as Christopher Lockhart-Mummery QC put it in Ahern, is whether:
“the proposed development in its implications for impact on the environment, or other relevant planning factors, likely to have implications worse than, or broadly similar to, any use to which the site would or might be put if the proposed development were refused”.
It’ll be interesting to see how decision-makers at every level - from Councils to Planning Inspectors to the Secretary of State - grapple with what a “real prospect” means in this strange new world against the unprecedented challenges in delivering development in lockdown.
In the end (truism alert!) each case will turn on its facts. So long as fall-backs aren’t forgotten about altogether, or taken into account when there’s no possibility at all of them coming into effect, the cases have emphasised time and again that how fall-backs are weighed in the planning balance is, in the end, a question of judgment for the planners, not one of law for the judges.
Stay well, #planoraks.
