Fallback argument stands up

An inspector has allowed the replacement of a barn in Wiltshire with a single dwelling after giving weight to the fallback of a prior approval for conversion (DCS Number 400-032-239). In doing so he set out case law on fallback. 

The appellants’ submissions highlighted construction methodology issues with the approved scheme, the inspector noted. Nevertheless, and contrary to the council’s claim, he found no substantive evidence that demonstrated insurmountable economic or other problems existed that would prevent the approved works from taking place. Indeed, he noted, correspondence indicated that a new dwelling would be provided regardless of the outcome of the appeal. As such, he found a greater than theoretical possibility that the conversion would be carried out even if the appeal were dismissed. Therefore, the approved scheme represented a fallback position.

Allowing the appeal, the inspector judged that the effects of the development would be almost identical to the approved scheme. As there was a real prospect that it would be implemented, he concluded that the fallback position attracted significant weight which outweighed that attributed to the harm from the site’s unsustainable location. 

In determining the appellants’ application for costs the inspector found, contrary to their submissions, that the fallback position had been treated by the council as a material consideration in its assessment.

The inspector recorded that case law on the matter (for example Gambone v Secretary of State for Communities and Local Government [2014]) has established that once the fallback position has been determined as a material consideration, the question for the decision-maker is the weight to be attached to it. Court judgments, he continued, have not dictated the level of weight that should be attached to such matters in the assessment of planning applications. As such, he ruled that the council was entitled to form its view that the fallback position attracted little if any weight, although he had arrived at a different conclusion.

Section 4.148 of DCP Online covers fallback.