Fallback Position

Recently refined under:

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An alternative GPDO development can be considered a ‘fallback’ position and given material planning consideration by the council in granting the permission.

Comments from Lindblom LJ:

“This restriction is stated to be a restriction on the change of use, not on the size of the building or buildings in which the change of use occurs. Sub-paragraph Q.1(b) relates to a single act of development in which the building in question, or part of it, is “changing use”. The floor space limit set by it relates not to the total floor space of the building or buildings concerned. It relates, as one would expect, to the permitted development rights themselves, which apply to the “cumulative” amount of floor space actually ‘changing use under Class Q’”.

Lindblom LJ confirmed the legal considerations in determining the materiality of a fallback position as a planning judgement were:

• 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 judgment in the particular circumstances of the case in hand.