In planning, you may hear the term “fallback” used when discussing the principle of development for a planning application. It can often be a confusing but interesting topic which is used as a tool for developers to get around a conflict that a development proposal may have against a specific local or national planning policy.
A fallback position specifically refers to an existing planning permission which confirms the principle of development that can then be used as a lever to gain full planning permission for an alternate scheme. It is a position whereby you can state that “we already have permission for XXX which can legally be implemented, therefore the proposed development of YYY should be assessed using XXX as a baseline”.
To put this into an example, national planning policy does not allow for the replacement of an agricultural building with a dwelling in the Green Belt. Permitted development rights can be used in the first instance to gain Prior Approval for the change of use and conversion of the agricultural building to residential. This does not require full planning permission and the local planning authority can’t use national policy to assess the application for Prior Approval. The development does not need to be carried out and the Prior Approval can be used as a fallback position whereby the principle of development has been established and used as a lever to gain planning permission for a replacement dwelling. A replacement dwelling for the agricultural building would be contrary to national policy but due to the fallback position being in place, a planning application cannot be refused on these grounds.
The acceptability and material impact of a fallback position was confirmed in Mansell v Tonbridge and Malling Borough Council ([2016] EWHC 2832 (Admin), where Mr Justice Garnham confirmed that ‘appropriate regard must be had to material planning considerations including the permitted development fall back position’. The fallback position can only be effective if it meets the three fallback tests which were established in R v Secretary of State for the Environment and Havering BC [1998].
Squires Planning use fallback positions in a range of different projects to overcome the constraints of planning policy on particular proposals. As such, we have been able to deliver a number of projects which originally seemed unlikely to gain permission as they conflict with policy. This includes larger extensions to dwellings in the Green Belt which would not normally be allowed as they would conflict with national policy.
If you have a project that conflicts with policy relating to the principle of development, contact Squires Planning and we will be happy to take a look to see if a fallback position can be established to help overcome the constraints of the policy.
