Class Q as a Fallback: Beware of False Prophets

A number of recent articles have described new appeal cases on Class Q as ‘paving the way for new builds’, however, the fallback position—in particular with regard to barn conversions—is not a novel concept.

It is established in case law that permitted development rights can legitimately represent a fallback position when considering alternative proposals for development of the same site.

The relevant legal principles relating to fallback were set out in R v Secretary of State for the Environment and Havering BC (1998) EnvLR189. In that case Mr Lockhart-Mummery QC, sitting as a Deputy High Court Judge, accepted submissions that there were three elements to the fallback test:

"First whether there is a fallback use, that is to say whether there is a lawful ability to undertake such a use; secondly, whether there is a likelihood or real prospect of such occurring. Thirdly if the answer to the second question is “yes” a comparison must be made between the proposed development and the fallback use.”

The notion of the Class Q fallback position was subsequently and comprehensively dealt with at the landmark Court of Appeal case, Mansell vs Tonbridge and Malling Borough Council [2017].

The case concerned an appeal of a decision dismissing a claim for judicial review of a planning permission granted by Tonbridge and Malling Borough Council, the development being the demolition of a barn and bungalow and the construction of four detached dwellings.

At the time of the decision, and prior to subsequent amendments, Class Q of Schedule 2, Part 3 of the General Permitted Development Order authorised the barn to be converted to three residential units with a combined floorspace of up to 450m2. Coupled with the replacement of the existing bungalow—also supported by policy at the time—the resultant effect was that the principle of development existed for four residential dwellings, such four dwellings being the same number of units for the proposed redevelopment of the site.

When originally granting permission, the officer stated in his report:

“In making an assessment of any application for development, we are bound to consider what the alternatives might be for a site: in terms of what could occur on the site without any permission at all (historic use rights) or using permitted development rights for alternative forms of development.”

...and the judge held that the officer was entitled to draw that conclusion:

“It was not a precondition to the Council’s consideration of the fallback option that the interested party had made an application indicating to take advantage of Class Q. There was no requirement that there be a formulated proposal to that effect.”

Specifically, the planning officer advised the council’s planning committee that:

“a scheme confined to taking advantage of permitted development would, in my view, be to the detriment of the site as a whole in visual terms…the current proposal therefore, in my view, offers an opportunity for a more comprehensive and coherent redevelopment of the site as opposed to a more piecemeal form of development that would arise should the applicant seek to undertake to implement permitted development rights”.

At the Court of Appeal, legal counsel for the appellant argued that the evidence did not demonstrate a real prospect as opposed to merely a theoretical prospect of such a development being carried out. He claimed that the judge should have recognised that the fallback development referred to in the officer’s report was not a material consideration. In responding, the judge stated:

“I cannot accept that argument. In my view the officer did not misunderstand any principle of law relating to a fallback development. His advice to the members was sound. The status of a fallback development as a material consideration in a planning decision is not a novel concept. It is very familiar…in this case…it was plainly appropriate, indeed necessary, for the members to take into account the fallback available to the East Malling Trust as the owner of the land, including the permitted development rights arising under Class Q in the GPDO and the relevant provisions of the development plan. Not to have done so would have been a failure to have regard to a material consideration, and thus an error of law.”

The Court of Appeal dismissed the appeal and thereby did not quash the council’s grant of planning permission. Three issues arose on appeal. The first two concerned: a) the interpretation of Class Q GPDO rights; and b) the materiality of the fallback position.

The second challenge by the appellant concerned whether there was a ‘real prospect’ of development under Class Q on the lack of contemporaneous evidence that the landowner had contemplated such development.

Lindblom LJ confirmed the legal considerations in determining the materiality of a fallback position as a planning judgement were:

  • the basic principle is that for a prospect to be a “real prospect”, it does not have to be probable or likely; a possibility will suffice;

  • there is no rule of law that, in every case, the “real prospect” will depend, for example, on the site having been allocated for the alternative development in the development plan or planning permission having been granted for that development, or on there being a firm design for the alternative scheme, or on the landowner or developer having said precisely how he would make use of any permitted development rights available to him under the GPDO. In some cases that degree of clarity and commitment may be necessary; in others, not. This will always be a matter for the decision-maker’s planning judgment in the circumstances of the case in hand.

He then concluded 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 to the Class Q fallback position in this case. Therefore, the council made no error in law in giving material weight to such fall back position.

An ever-growing number of determinations across the country have since recognised the fallback position as a legitimate material consideration. In the appeal case 3248009, the Inspector found in favour of the appellant and judged that, new dwellings would produce a better result than a fallback option allowing for a barn’s residential conversion.

The Inspector found:

“However, there is a realistic fallback position which would result in the same amount of housing being delivered in the same location, and in these circumstances, I afford the conflict with the development plan moderate weight. The appeal proposal would however deliver significant benefits to the appearance of the site compared to that fallback position, and this carries significant weight in favour of the appeal proposal. Overall, taking account of the Framework and the above considerations, I find that the benefits of the proposed development compared to the identified fallback position are a material consideration which outweighs the conflict with the development plan and justifies granting planning permission for the proposal. Consequently, I conclude that the appeal should be allowed.”

Bottom line, where there is demonstrably a realistic prospect of a permitted development scheme being implemented, and where an alternative proposal would normally conflict with the development plan insofar as it being an unsuitable location for housing, the potential for the fallback position to outweigh that conflict must be considered by the local authority. It stands to reason that, where the alternative new-build proposal offers either an enhancement to the setting or a reduction in density when compared to the fallback, the development could (and perhaps should) be allowed to proceed.

It is also important to be weary of advice to use Class Q as a ‘stepping stone’ to achieving new-build development as, whilst this is wholly possible, where the local authority are not satisfied that the fallback position would ever be implemented, there is no reaslistic prospect and the fallback position ceases to exist.