What is a fallback position in planning?

What is a fallback position in planning?

A fallback position is something you could do if your current planning application or appeal fails.

It might be an existing planning permission. It might be a smaller extension you could build under permitted development. It might be a use of land or a building that has become lawful over time. In enforcement cases, it might be the development that the council already accepted, before something was built slightly differently.

Fallback positions are important because planning decisions should be made in the real world. The council should not always compare your proposal with doing nothing at all. Sometimes, the real alternative is not “nothing happens”. The real alternative is that you build or use something else that is already lawful, already permitted, or very likely to be allowed.

That can change the whole way a planning application or enforcement appeal is assessed.

Compare your proposal with the fallback option

Imagine you want to build a five-metre rear extension to your house. The council may think five metres is too deep. But if you could already build a four-metre rear extension under permitted development, the question is not whether a five-metre extension is perfect. The question is whether the extra metre causes enough additional harm to justify refusing planning permission.

The same point arises where a site already has planning permission for one form of development. If you have permission for a bungalow, but now want to build a slightly taller house, the council cannot sensibly assess the proposal as if the site will remain empty. The fallback position is that you could build the bungalow. The real question is whether the revised proposal is materially worse than the bungalow that has already been approved.

This is often where applicants and councils talk past each other. The council may focus on everything it dislikes about the proposal. The applicant may need to bring the discussion back to the real comparison. What would happen if this application were refused? What could be built anyway? What actual difference would the refusal make?

That is the value of a fallback position. It narrows the argument.

A fallback position must be real

A fallback argument is not a magic spell. You cannot just point to something you vaguely might do one day and expect the council to give it much weight.

For a fallback position to be useful, it needs to be real: it should be lawful, available and credible.

An existing planning permission may be a strong fallback if it can still be implemented, or if it has already been lawfully started and therefore remains live. A permitted development scheme may be a strong fallback if it genuinely complies with the General Permitted Development Order.

The fallback does not need to be your preferred option and it does not even need to be especially attractive. However, it does need to be something you could and would realistically do.

This is where applicants sometimes go wrong. A deliberately ugly permitted development scheme, drawn up only to frighten the council into approving something else, may not carry much weight if no one believes it would ever be built. Equally, a fallback based on permitted development rights is weak if those rights have been removed by condition, restricted by an Article 4 direction, or you have misunderstood how they work.

Previous planning permissions

The most straightforward fallback position is an existing planning permission.

If the council has already granted permission for development on a site, that permission is a material consideration when a later application is assessed. It may show that the principle of development is acceptable. It may also establish that a certain amount of built form, overlooking, traffic, parking demand or general impact has already been accepted.

This can be particularly powerful where the new proposal is only modestly different from the approved scheme. In those cases, the council should not re-open every issue from first principles. It should focus on the difference between the approved development and the new proposal.

For example, if a council has already approved a single-storey house in a back garden, and the applicant later seeks permission for a slightly altered version of the same house, the main question should be whether the changes cause additional harm. The council may still refuse permission, but it should not pretend that the alternative is an empty garden if there is already a live permission for a house.

The same applies where a planning permission has been lawfully implemented. If works have started properly within the time limit, the permission may remain capable of completion even many years later. That can be a very strong fallback, though it is important to check the position carefully. Whether a permission has been lawfully implemented can sometimes be a technical question.

Permitted development fallbacks

Permitted development rights often provide useful fallback positions, especially in householder cases.

If a homeowner applies for planning permission for an extension, the council should take account of what could be built without planning permission under permitted development rights. In many cases, permitted development rights allow extensions that are larger, bulkier or less attractive than the council would normally approve through a planning application.

This can produce strange results. A council may resist a carefully designed extension because it does not comply with its local guidance, while ignoring the fact that the homeowner could build something similar, or worse, without needing planning permission at all.

A permitted development fallback is often used in appeals involving dormers, rear extensions, outbuildings and roof alterations. It does not automatically win the case, but it can be very persuasive. If the fallback would have much the same effect as the proposal, the council may struggle to explain why planning permission should be refused.

However, permitted development should never be assumed. The rules are technical. Flats do not have householder permitted development rights. Conservation areas restrict some rights. Article 4 directions may remove others. Planning conditions may also take permitted development rights away. Before relying on a permitted development fallback, you need to be confident that it is genuinely available.

In some cases, it is sensible to apply for a Lawful Development Certificate first. That gives formal confirmation that the fallback is lawful and makes it much harder for the council to dismiss the argument later.

Fallback positions in enforcement cases

Fallback positions can be especially important in enforcement cases.

That is because enforcement often involves drastic consequences. The council may be requiring a building to be demolished, a use to stop, a flat conversion to be reversed, or works to be undone. In those circumstances, the question is not always simply whether there has been a breach of planning control, but whether the council’s required solution is proportionate.

Suppose an extension has been built slightly differently from the approved plans. The council may serve an enforcement notice requiring the whole extension to be demolished. But if the owner already has permission for a very similar extension, the fallback position is obvious. The council should be asking whether the difference between the approved extension and the extension as built causes real planning harm.

The same point can arise with outbuildings. A council may object to an outbuilding as built, but the owner may be able to build a similar structure under permitted development. If the fallback structure would have much the same effect on neighbours and the garden, that may be a powerful argument in an appeal.

It can also arise with changes of use. If a property has a lawful use, or there is strong evidence that a use has become immune from enforcement action, that may shape how the council should approach the case. The fallback may not answer every issue, but it can change the starting point.

In enforcement appeals, a good fallback argument often depends on careful comparison. What was approved? What was built? What could be built anyway? What harm is caused by the difference?

The bungalow that was 75cm out of place

A good example is an enforcement appeal we handled in Brent.

Our client had planning permission to demolish a garage and build a small bungalow. He built the approved house, with the approved design and dimensions, but it was set out in the wrong position. It ended up around 75cm closer to the rear boundary than shown on the approved plans.

The council served an enforcement notice requiring the whole dwelling to be demolished.

There had been a breach of planning control. The house had not been built exactly where the approved plans said it should be. But the original planning permission was still an important fallback position. If the appeal failed, the client could demolish the house and rebuild almost the same house, in almost the same place, just 75cm further away from the boundary.

The inspector accepted that this would not be a sensible outcome. The appeal was allowed, the enforcement notice was quashed and planning permission was granted for the bungalow as built.

That case shows the power of a fallback position. The council’s case focused on the impact of the bungalow on the neighbour. The fallback argument narrowed the issue. The real question was not whether the neighbour preferred the garden before the bungalow was built. The council had already granted permission for a bungalow. The question was whether the extra 75cm caused enough additional harm to justify demolition.

A fallback is not the same as precedent

People often confuse fallback positions with precedent, but they are not the same thing.

A precedent is usually something that has been allowed nearby. A neighbour may have built a large extension, converted a house into flats, added a dormer or built an outbuilding. That may be relevant. It may show how the area has changed or how the council has treated similar proposals.

A fallback is something available to your site. It is something you could do, or continue doing, if the council refused your application or upheld an enforcement notice.

A neighbour’s extension does not give you the right to build the same extension. It may help your case, but it does not have the same force as your own existing planning permission, your own permitted development rights, or your own lawful use.

Many weak planning arguments amount to little more than “someone else was allowed to do something similar”. That may be worth saying, but it is rarely decisive. A true fallback position is much stronger because it shows what can lawfully happen on your land.

How to show there is a fallback

A fallback argument needs evidence.

If the fallback is an existing planning permission, you will need the decision notice, approved plans and any evidence that the permission remains live or has been implemented. If the fallback is permitted development, you will need a proper assessment against the GPDO, and ideally a Lawful Development Certificate. If the fallback is an existing use, you may need tenancy agreements, photographs, council tax records, utility bills, invoices, statutory declarations or other evidence showing that the use is lawful.

In some cases, the most important document is a comparison plan. This shows the approved development, the fallback development and the disputed development side by side. These drawings can be extremely helpful because they focus the decision-maker’s attention on the actual difference between the options.

That is often where fallback arguments are won or lost. It is not enough to say “we have a fallback”. You need to show what the fallback is, why it is available and how it compares with the development the council is objecting to.

The mistakes people make

The most common mistake is assuming that a fallback exists without checking it properly.

A homeowner may assume they have permitted development rights, only to discover that they live in a flat, or that the property is in a conservation area, or that the original planning permission for the house removed those rights. A developer may assume an old planning permission can still be built, only to discover that it expired years ago and was never lawfully implemented.

Another mistake is relying on a fallback that is too vague. “We could do something similar under permitted development” is not enough. What exactly could be built? Where would it sit? How high would it be? What would it look like? Would it really comply with the GPDO?

There is also a tactical mistake. Some applicants present a fallback as a threat: approve this, or we will build something worse. That approach can irritate councils and inspectors. It is usually better to present the fallback calmly, as part of the planning balance. The point is not to threaten anyone. The point is to identify the real-world alternative if permission is refused.

The point of a fallback argument

A fallback position does not make every proposal acceptable and it does not allow you to build whatever you like. It does not mean the council has to approve a harmful development simply because something else could happen instead.

In ordinary planning applications, it may help secure permission for a larger or altered scheme. In enforcement cases, it may show that demolition or full reinstatement would be excessive. In some appeals, it may be the difference between losing the building altogether and keeping it with little or no alteration.

If you are facing enforcement action, the existence of a fallback position should always be considered carefully. The council may be right that there has been a breach of planning control. But that is not always the end of the story. The real question may be whether the breach has caused any additional planning harm, when compared with what could lawfully happen anyway.