Fall-back position as a material consideration

A fall back position planning argument says this: if you refuse me, I will lawfully do something else, and that something else is no better for the area than what I am asking for. The comparison the decision maker then has to make is between the proposal and the alternative, rather than between the proposal and an empty site. It is one of the most useful arguments in development management and one of the most frequently made badly.

What the argument claims

The fall-back is an alternative course of action available to the applicant without any further permission, or under a permission already granted. Common examples are development that could be carried out under permitted development rights, an extant planning permission with time left to run, a use that could lawfully be resumed, or a scheme already approved and capable of implementation.

The argument is not that the fall-back is better. It is that the harm from the proposal should be judged against the harm from the alternative, because the alternative is what the area will get if permission is refused.

Done properly, it reframes the whole assessment. A rear extension that the council thinks is too large stops being compared with the existing house and starts being compared with the slightly different extension that could be built without any application at all.

The real prospect threshold

The threshold set by the Court of Appeal is that there must be a real prospect that the fall-back would be implemented. It does not have to be probable, and it does not have to be certain.

Two decisions frame this. In Samuel Smith Old Brewery the court held that the question is whether there is a real prospect, which is a lower bar than likelihood. In Mansell the Court of Appeal drew the principles together and confirmed that the weight to be given to a fall-back, once a real prospect is established, is a matter for the decision maker.

That two-stage structure is what submissions usually miss. Establishing a real prospect gets the fall-back into the balance. It does not tell anyone how much weight it carries, and a fall-back that is technically available but commercially absurd will get very little.

Evidence that the alternative is deliverable

Treat this as an evidential exercise rather than an assertion. Four things need showing.

1. That the fall-back is lawful. The strongest evidence is a certificate of lawfulness of proposed use or development under section 192 of the Town and Country Planning Act 1990, already granted. An opinion that something would be permitted development is worth far less than a certificate confirming it.
2. That it is available. An extant permission needs time remaining and any pre-commencement conditions capable of discharge. Permitted development rights need to survive any article 4 direction or condition removing them.
3. That it is deliverable. Ownership, access, funding and buildability all matter, and a fall-back that would require a neighbour's land is not a fall-back.
4. That there is a genuine intention, or at least a rational commercial reason, to pursue it. A witness statement from the applicant helps. Evidence that the fall-back has been costed helps more.

Draw the fall-back. A set of drawings showing the alternative scheme at the same scale as the proposal is the single most effective document in this kind of case, because it lets the officer see the comparison rather than imagine it.

Comparing harm between the two

The comparison has to be like for like and honest. Take each harm the council has identified and set out what the fall-back does on the same measure: massing and bulk, overlooking distances, daylight to neighbours, loss of trees, parking demand, character of the street.

Where the fall-back is worse on a point, say so and quantify it. Where it is better, concede it. An applicant who claims the fall-back is worse on every measure loses credibility, and the officer stops reading.

The most persuasive fall-back cases are the narrow ones. The proposal and the alternative differ on two or three points, the alternative is demonstrably available, and the applicant is asking for a modest improvement on something they could build anyway.

Permitted development rights as a fall-back

Permitted development is the commonest fall-back and it carries a specific risk: the rights have to exist.

Check for an article 4 direction covering the property. Check every condition on every previous permission, because conditions removing permitted development rights are routinely imposed on new dwellings, on conversions and in designated areas. Check whether the property is article 2(3) land, which removes several householder rights outright. And check whether earlier extensions have already used up the allowance.

A fall-back argument built on rights that were removed in 2006 by a condition nobody read is worse than no argument at all, because it undermines everything else in the submission.

Where the argument fails

Five failures recur.

The fall-back would itself need permission, so it is not a fall-back. The permission relied on has expired or cannot be implemented because a pre-commencement condition cannot be met. There is no real prospect because the alternative is uncommercial and the applicant has said as much elsewhere. The harms are not actually comparable, for instance where the fall-back affects a different neighbour entirely. Or the fall-back is presented as a threat rather than an analysis, which tends to harden officers rather than persuade them.

Tone matters more here than in most planning arguments. A submission that reads as blackmail invites a refusal and an unsympathetic officer report. The same facts, set out as a neutral comparison, read as a reason to grant.

Presenting it in a statement

Give the fall-back its own section in the Planning Statement, after the policy assessment rather than before it. The policy case should stand on its own, with the fall-back as a further material consideration, because a submission that leads with the fall-back is telling the officer the scheme fails on its merits.

Structure the section in four parts: what the fall-back is, why it is lawful and available, why there is a real prospect it would be implemented, and a point-by-point comparison of effects. Attach the certificate, the extant permission and the fall-back drawings as appendices.

Illustrative example: a barn already holding a prior approval for conversion to three dwellings, with 18 months left to run and the conditions discharged. The applicant seeks full permission for two larger units with a different fenestration pattern. The statement sets out the extant scheme, its deliverability, and a table comparing floor area, parking, window positions and hedgerow loss. The full application succeeds because the officer can see the comparison in one page.

On appeal, the same discipline applies with a further requirement: the fall-back has to be evidenced in the documents, since an inspector will not accept an assertion made for the first time at a hearing. Where a council has simply failed to determine an application, the route is set out in our note on non-determination and the deemed refusal appeal, and national policy statements that bear on the case should be handled as described in our note on written ministerial statements in planning.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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