When is a fallback position a material planning consideration?

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The Court of Appeal in Mansell v Tonbridge And Malling Borough Council [2017] EWCA Civ 1314 has recently clarified when a ‘fallback’ development may be a material planning consideration for an alternative development scheme. The court also re-examined the correct interpretation of Class Q general permitted development rights (i.e. agricultural building to residential dwelling).

The case concerned an appeal of the first instance decision of Garnham J in dismissing a claim for judicial review of a planning permission granted by Tonbridge and Malling Borough Council. The development being the demolition of a barn and bungalow and the construction of four detached dwellings.

Class Q in the Town and Country Planning (General Permitted Development) Order 2015 (“GPDO”) authorised the barn to be converted into up to three residential units subject to a combined floorspace of up to 450sqm. The resultant effect being there could be four residential dwellings (ie. the converted barn into three dwellings and existing bungalow) on the site pursuant to this GPDO planning route. Such four dwellings being the same number of units for the proposed re-development of the site.

This alternative GPDO development was considered a ‘fallback’ position and given material planning consideration by the council in granting the permission. Specifically, the planning officer advised the council’s planning committee that:

“a scheme confined to taking advantage of permitted development would, in my view, be to the detriment of the site as a whole in visual terms…the current proposal therefore, in my view, offers an opportunity for a more comprehensive and coherent redevelopment of the site as opposed to a more piecemeal form of development that would arise should the applicant seek to undertake to implement permitted development rights”.

The Decision

The Court of Appeal dismissed the appeal and thereby did not quash the council’s grant of planning permission. Three issues arose on appeal. The first two concerned the interpretation of Class Q GPDO rights and the materiality of the fallback position. These are discussed further below. The Court also considered whether the council incorrectly applied the tilted balance towards sustainable development in paragraph 14 of the National Planning Policy Framework. The local plan being up to date. It was found that the council correctly hadn’t applied the tilted balance on proper reading of the planning officer’s report, and the ground failed.

Class Q Interpretation

The first challenge by the appellant concerned the correct interpretation of Class Q GPDO rights. Specifically, whether the exclusion of such rights in paragraph Q.1(b)&(h) to agricultural buildings exceeding 450sqm in cumulative floorspace applied:

  • (i) only to the extent of that part of the building changing use to a residential dwelling(s) (i.e. where a building exceeds 450sqm in floorspace then only such part upto 450sqm is permitted to change use under class Q. In this case the barn measured 600sqm); or
  • (ii) to the whole building meaning no building over 450sqm qualified for the Class Q GPDO rights.

The council had applied interpretation (i) above in determining the fallback position.

Lindblom LJ agreed with the council, and the first instance judge, that interpretation (i) above was the correct approach. He stated:

“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’”.

Fallback Position

The second challenge by the appellant concerned whether there was a ‘real prospect’ of development under the Class Q GPDO rights on the lack of contemporaneous evidence that the landowner had contemplated such development.

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.

He then concluded that the clear desire of the landowner to develop, and maximise the value of, the site was sufficient to demonstrate there was a real prospect to the Class Q GPDO fallback position in this case. Therefore, the council made no error in law in giving material weight to such fallback position.

Lesson: importantly for landowners, Class Q GPDO rights were confirmed to enable residential conversion of agricultural buildings exceeding in total 450sqm in floorspace albeit that only such part of the building within this limit can be converted. It was also confirmed that the fallback position can be a material planning consideration provided it is a clear possibility.