Farm diversification and the fallback position argument

A fallback position is what you could lawfully do on the land if the application is refused. In a farm diversification case it is usually an unexercised permitted development right or an extant permission, and the argument runs that the proposal should be judged against that realistic alternative rather than against an empty field. The fallback position carries weight only where there is a real prospect of it being implemented, and that is where most rural cases come apart.

Done properly it can turn a marginal application. Done badly it invites the officer to suggest you get on and implement the fallback instead.

What a fallback position is and why it carries weight

The logic is comparative. If a refusal would leave the owner free to erect a large steel portal-framed agricultural building under Part 6 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015, then the landscape effect of that building is the realistic baseline. A proposal for a smaller, better-sited workshop may cause less harm than the thing that would happen anyway.

Fallback is a material consideration, so it goes into the planning balance alongside policy. It does not override a development plan conflict. What it does is change the weight attached to the harm, because harm has to be measured against a realistic alternative rather than against a theoretical do-nothing.

The courts have looked at this repeatedly, and the approach in cases such as Samuel Smith Old Brewery and Mansell is indicative of how the question is framed: is there a real prospect of the fallback happening, and what would its effects be? The answer is a matter of planning judgement for the decision-maker rather than a formula.

The real prospect test

Real prospect is a low bar in probability terms and a high bar in evidential terms. It does not mean more likely than not. It means the possibility is real rather than fanciful, judged on the evidence in front of the decision-maker.

Three questions in order:

1. Is the fallback lawful and available right now? An expired permission, a permitted development right removed by condition or by an Article 4 direction, or a right whose qualifying conditions the site fails, is not a fallback at all.
2. Is there a real prospect that this owner, on this holding, would implement it? Capability matters less than intention supported by something tangible.
3. What would the effects of the fallback be, described with the same rigour as the effects of the proposal?

Skip the third question and the argument is worthless. An inspector cannot compare two scenarios when only one has been assessed.

Using an unexercised permitted development right

The most common rural fallbacks are Part 6 agricultural development, Class Q residential conversion of an agricultural building, Class R flexible commercial use, and the temporary use right that allows land to be used for camping and caravans for up to 60 days.

Each carries qualifying conditions that have to be satisfied before the right exists, and this is where the argument usually fails on the facts rather than on the law. Part 6 depends on the holding's area and on the development being reasonably necessary for agriculture. Class Q depends on the building having been in agricultural use on a specified date and on the extent of works needed. Class R depends on the floorspace limit and on the building's prior agricultural use.

The clean way to establish availability is a certificate of lawfulness of proposed use or development under section 192 of the Town and Country Planning Act 1990. A lawful development certificate is the only formal way to confirm that a proposed use or operation would be lawful, and an application supported by one removes the argument about whether the right exists. It costs a fee and a few months. On a scheme where the fallback is doing real work, that is money well spent.

Where prior approval is required, an approval already obtained is better evidence still. A prior approval sitting in the file, unimplemented, with time remaining, is about as strong as a fallback gets.

Evidence that the fallback would actually be implemented

Assertion fails. What works is documentary:

• a prior approval or planning permission that remains live, with the expiry date stated
• quotations, a specification or a builder's estimate for the fallback scheme
• correspondence showing the holding's need, such as a herd expansion plan or a contract requiring covered storage
• evidence of the owner having implemented similar development before
• a farm business plan showing the fallback as the alternative route to the same income

A witness statement saying the owner would build the shed if refused is worth something, and worth much less than a quotation for the shed. Where the fallback would need finance, say how it would be funded.

Illustrative example: a holding of 30 hectares applies for a farm shop and small café in a converted stone barn within a National Landscape. The fallback advanced is a Part 6 general-purpose building of similar footprint on the same yard, supported by a prior notification already determined, a steel frame quotation and a note on the storage the arable enterprise needs. The comparison is then between a converted stone barn and a new profiled-sheet building, which is a far better argument than the barn against nothing.

Where the argument fails

Inspectors reject fallbacks for reasons that repeat:

The right does not exist. The unit is below the area threshold, the building was not in agricultural use at the relevant date, or an Article 4 direction has removed the right. Check before you write.

The fallback needs something else. A Part 6 building that would require a separate discharge of a prior notification condition, or access works needing highway consent, is a chain of events rather than a single step, and each link reduces the prospect.

The fallback is not worse. Owners sometimes advance a fallback whose effects, properly assessed, are milder than the proposal. That hands the council its refusal reason.

The prospect is contrived. A fallback invented for the appeal, with no evidence predating the refusal, reads as a device. Where the fallback appears for the first time in the appeal statement, expect it to be treated accordingly.

And there is the blunt response: if the fallback is acceptable and clearly intended, the council may simply say so and invite you to build it.

How to present it in a planning statement

Give the fallback its own section in the Planning Statement, structured so an officer can lift it into a report.

State the legal basis with the class and the Order. Set out each qualifying condition and how the site meets it, with the evidence referenced. Set out the evidence of real prospect, listed and dated. Then describe the fallback's effects on landscape, amenity, highways and heritage to the same standard as the proposal, using the same assessments. Where landscape is the issue, that means the fallback scenario appears in the Landscape and Visual Impact Assessment rather than being described in prose.

Close with the comparison and leave the weight to the decision-maker. Overclaiming here reads badly. "The fallback is a material consideration to which the Council is invited to attach substantial weight" is the right register.

The risk of leaning on it alone

A fallback argument rarely wins an application on its own, and it cannot cure a fundamental policy conflict. In Green Belt terms, a fallback does nothing about inappropriateness, though it may bear on the harm to openness. In a National Landscape, it may narrow the landscape argument without answering the question of whether the development conserves and enhances.

Build the positive case first: the diversification need, the enterprise's contribution, the reuse of existing buildings, the siting and materials. Similar reasoning applies to farm diversification into workshops and offices, where the existing building is usually the stronger argument. Treat the fallback as a supporting argument that reduces the weight of harm, and it will do useful work.

Enter your postcode on PlanScope to see which reports a diversification scheme is likely to need before you commission survey work.

This is general guidance rather than legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.