Q: When is a fall back not a fall back?
A: Almost never!
A High Court challenge to the grant of planning permission for a new out-of-town retail development has offered some judicial explanation of when a planning authority can take a fall back position into account when deciding whether to grant permission for a new development.
One of the material considerations that a planning authority should take into account when deciding whether to grant planning permission for a development proposal is what the alternative is for the site in question. When the development is not welcomed or is contrary to policy, the question of what can be done with the land without the need for planning permission can be particularly relevant.
An existing planning permission, permitted development rights and the existing use of a site are all examples of possible fall back options that developers may ask a local planning authority to take into account when deciding whether or not to grant planning permission. Often, especially when the planning authority is seeking to refuse permission, the question arises as to whether the fall back position that is being put forward is a genuine fall back that qualifies as a material planning consideration.
The case of Zurich Assurance v North Lincolnshire Council involved a challenge by Zurich, the owners of much of the retail centre of Scunthorpe, to a decision by North Lincolnshire to grant planning permission for an out-of-town retail development on an existing garden centre site. One of the grounds of Zurich’s challenge was that the Council had wrongly taken into account the potential for a fall back open retail scheme. This fall back was claimed to arise because the garden centre had, for many years, sold a wider range of goods than was permitted by the conditions imposed on its planning permission.
While Zurich sought to argue that the committee should have been advised that they could only take a fall back into account if it were a realistic possibility, the Court rejected this; finding that the fall back does not have to be probable or even have a high chance of occurring. Instead the Court held that, in order to be a material consideration, a fall back only has to have “more than a merely theoretical prospect”. While the likelihood of the fall back occurring may affect the weight to be attached to it, the Court did not feel it affected its status as a material planning consideration.
Comment: Fall back options occur frequently and not just in retail planning. Residential development proposals, for example, often involve a consideration of a fall back option as part of their justification for approval. This case sets the threshold for a fall back option very low indeed, although it leaves open the question of how much weight can be attached to something that has only an outside chance of ever happening. Local planning authorities need to be alive to the possibility of a fall back option when determining planning applications and developers should never overlook the potential for a fall back position to support their application.