The Importance of Fallback Positions

17th June 2019

When any planning application is being determined, under Section 70(2) of the Town and Country Planning Act 1990 and Section 38(6) of the Planning and Compulsory Purchase Act 2004 it must be determined in accordance with the Development plan unless material considerations indicate otherwise.

In planning, a material consideration is anything, in addition to the Development Plan, which is relevant to making a decision. On one recent project, an extension to a private dwelling in Hounslow, the fallback position created through permitted development rights was a material consideration that was critical to the success of an alternative proposal.

On this particular property, it would have been possible to build two 5.9m deep single-storey rear extensions side by side under permitted development rights, provided that they had a gap between them. The abnormal requirement was caused by an irregular rear elevation to the original house.

Having received confirmation that rear extensions were permitted development under the prior approval process, we applied for planning permission to make minor design changes to the extensions. Without changing the depth, height or separation distances from the boundary we sought to remove the gap between the two extensions and improve the design of the roof.

We were refused planning permission because the proposals would have failed to meet the requirements of the Development Plan. Permitted development rights allowed for deeper extensions than the Council’s planning policy would normally allow.

The permitted development works had not begun when the application was made. There was a deadline under the permitted development rules to have these works completed by 30th May 2019 because the provision for this larger size of extension was only temporary at the time. The Council did not consider that there was a realistic prospect of the works under permitted development being built and so did not give significant weight to that fallback position.

We appealed against the decision, highlighting case law made in relation to the materiality of planning history and how much weight it should be given, particularly cases where the planning history related to permitted development and prior approval cases. Helpfully, during the course of the appeal, James Brokenshire MP issued a Written Statement to Parliament. Within this statement, he confirmed that the time limit for implementing larger rear extensions would be removed and it would be made a permanent provision under permitted development rights.

The Planning Inspectorate allowed the appeal. The decision highlighted that, despite failing to comply with local planning policies, significant weight had to be given to the planning history and the Written Ministerial Statement as a material consideration. The Written Ministerial Statement was given weight even without the changes to permitted development rights that is referenced having been formalised. The greater than theoretical possibility that they would be formalised shortly was considered to be a material consideration. On balance, therefore, the material considerations outweighed regard to the development plan and enabled the appeal to be allowed. This approach certainly gives us hope for common sense prevailing in such circumstances.

If you have any queries regarding this please do not hesitate to contact Senior Planner, Geoff Megarity.

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