Permitted development fallback outweighs local plan policy

Permitted development fallback outweighs local plan policy

“On 8 September 2017 the Court of Appeal upheld a High Court decision that a fallback position in the form of Class Q permitted development rights (PDRs) was a relevant material consideration in the approval of a planning application for an alternative residential development”, says Brian Dinnis of Acorn Rural Property Consultants.

“The issue was whether the local planning authority (LPA) was right to grant planning permission to demolish a 600 square metre agricultural building and bungalow, and to construct four detached dwellings with garages and gardens.  The development was in conflict with the local plan but was approved by the LPA who reasoned that a realistic fallback existed in terms of how the landowner could otherwise develop the site using PDRs.  The LPA considered that the planning application proposal offered an opportunity for a more comprehensive and coherent development as opposed to a more piecemeal scheme that would arise if the landowner sought to utilise PDRs.  The owner of a neighbouring property, a Mr Mansell, objected to the decision and that the PDR fallback position was not correct and applied to the High Court for a judicial review to quash the approval.

The Court rejected Mr Mansell’s assertion that the LPA had misinterpreted the provisions of Class Q and had wrongly accepted that there was a real prospect of the fallback development being implemented in accordance with the PDRs.

The Court accepted 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 of the fallback position and it was not a precondition to the fallback option that the landowner make an application indicating an intention to take advantage of PDRs.  In the Court’s view, it was wholly unrealistic to imagine that the landowner would not take advantage of PDRs to the fullest extent possible if planning permission for an alternative development were turned down.  The Court remarked that not to take account of the fallback available to the landowner would have been a failure to have regard to a material consideration and thus an error of law.  In giving material weight to the real prospect of the fallback position, the Court concluded that the LPA made no error of law”, explains Dinnis.

“The outcome of this case reconfirms that a fallback position afforded by PDRs can qualify as a significant material consideration when assessing a planning application for other forms of development.  It is also significant that the Court confirmed that obtaining a PDR approval in advance of a planning application for an alternative development is not a necessary precondition to establishing a fallback provided there is a real prospect of a landowner proceeding under PDRs if planning permission is not granted”, add Dinnis.

For specialist advice on rural planning matters, please contact Brian Dinnis at Acorn Rural Property Consultants on 01278 772655 or at briandinnis@acornrpc.co.uk.

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