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When can a fall-back development be a material planning consideration?

Marketing / 13 Apr, 19

Many of our projects are on established sites or brownfield sites in countryside locations and designated landscapes where development is restrictive. Over the last year, we have advised on sites in a number of sensitive locations including the North Yorkshire Moors National Park, the Cotswolds Area of Outstanding Natural Beauty (AONB) and the Gower AONB.

Given such restrictions, it can be very easy for local planning authorities to resist proposed developments on the basis that their planning policies do not allow new residential, office, warehousing or tourism developments. We are therefore often appointed to devise supporting planning cases based on Development Plan policies and material considerations, which can include national planning policy as reflected in the NPPF (revised in July 2018) and national planning guidance. This can require ‘out of the box thinking’. For example, we pride ourselves in undertaking thorough site research at the beginning of commissions to establish what Permitted Development Rights (PDR) (i.e. what type of development can take place without the need of planning permission) exist at a site. This can then be used when negotiating planning applications and in some circumstances, it can tip the planning balance in favour of a planning application.

In this regard, a 2017 Court of Appeal Judgement (Mansell v. Tonbridge & Malling Borough Council [2017] EWCA Civ 1314) clarified when a fall-back development may be a material planning consideration for an alternative development. This case concerned an appeal concerning a decision of Garnham J in dismissing a claim for judicial review of a planning permission granted by Tonbridge & Malling Borough Council. The demolition being the demolition of a barn and bungalows and the construction of 4 detached dwellings.

In the Court of Appeal Judgement, 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 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.

We have recently referred to this case when submitting planning applications for residential developments in Wealden, Cornwall and Lewes. Although these planning applications are still under consideration, we have persuaded the planning officers that each of these sites benefit from a number of fall-back developments and these positions should be given significant weight in the planning balance exercise. Our research in establishing that fall-back developments exist has therefore enhanced the prospects of obtaining planning permission in each case; we are hopeful of receiving positive decisions shortly.

Please contact Owen Pike on 0117 338 1813 if you want to discuss this Court of Appeal Judgement or if you require planning advice on a project.

Topics: News

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