Despite difficulty grappling with the concept of the fallback position, the North Kesteven Planning Committee resolved to approve our application for 4 dwellings on Tuesday by 9 votes to 2.
The planning case for the proposal—which comprised the conversion of a stone barn and the replacement of a steel-framed barn with 3 new dwellings—was predicated on the potential for the steel-framed barn to be converted to up to 5 dwellings under Class Q.
The law requires that planning decisions have regard to the development plan and any other material considerations, and the NPPF makes clear that an application should be determined in accordance with the development plan unless material considerations indicate otherwise.
It is clearly established in case law that permitted development rights can legitimately represent a fallback position when considering alternative proposals for development of the same site, and that such a fallback position is capable of being a material consideration. The notion of Class Q as a fallback position was comprehensively addressed by the Court of Appeal in Mansell.
When assessing any application for development, decision makers must consider what the alternatives might be for a site, in terms of what could occur on the site without any permission at all or using permitted development rights. In this case, it was necessary that members take into account the fallback position available to the applicant; not to do so would have been an error of law.
Whilst almost certainly preferred by local authorities, the judge in Mansell confirmed that “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.”
Notwithstanding the judge’s comments, the fallback position in this case, namely the conversion of the open-fronted machinery store to four dwellings and the conversion of the stone barn to one dwelling, had been clearly formulated and comprehensively assessed against the relevant legislation by officers. Despite no formal application for prior approval having been made, it was mutually accepted that, were an application for Class Q to be submitted, such a proposal would be compliant with the legislation and could deliver at least five dwellings on the proposal site.
Given the lawful ability to implement the fallback use was established, and that there was a realistic prospect of such a use being implemented, a comparison was required between the proposed development and the fallback use. The case law makes clear that, where a fallback position exists, authorities should seek to approve alternative schemes that result in a better planning outcome.
Through input from the Council’s consultees, the proposal had evolved considerably since originally submitted with the applicant and officers having worked together to identify a mutually acceptable scheme.
In informing the final design, the Conservation Officer had raised concerns that:
“Many recent residential developments on these former agricultural, “backland” sites have diluted the distinction by using designs and materials based on the “main street” type of houses and thus causing harm to local character and distinctiveness.”
The choice of black metal cladding was deliberate. The intention in this approach to detailing and materials was to maintain an association to the previous agricultural use of the site and create a clear distinction between those road frontage properties and the land to the rear which historically has never been characterised by dwellings.
The Conservation Officer ultimately concluded that he ‘welcomes the approach taken by this application, which is not to extend an obviously residential aesthetic onto what has historically been an agricultural yard, but to maintain a distinction between the street front and the land behind.’
Additionally, whilst representations were received indicating a preference for the use of more traditional materials, it was important that this application not be viewed in isolation or divorced from the fallback position; a comparison was required to be made between what had been proposed, and what could be delivered through permitted development rights.
The scheme includes the demolition of the machinery store and its replacement with two dwellings, on its existing footprint, and broadly commensurate with its existing scale. The materials are synonymous with a typical barn conversion under Class Q, and it was therefore our submission, not only that the elected materials were appropriate, but also, when compared with a fallback conversion scheme, that there would be no additional material harm.
The scheme incorporates the entirety of the yard and would be subject to a landscape condition guaranteeing a cohesive form of development when viewed as a whole. Conversely, due to the restrictive curtilage allowances under Class Q, a fallback scheme would deliver an awkward arrangement of properties with a large area of the farmyard left redundant. The NPPF places a clear requirement on authorities to ensure that decisions promote an effective use of land and there can be little doubt our proposal is more closely aligned with this aim when compared with any fallback scheme.
The planning case for this application was a simple one: there was a clear lawful ability for the applicant to implement a greater number of dwellings without the need for planning permission and the only consideration therefore was whether this proposal advances benefits when compared with a fallback scheme, such benefits having been clearly identified and presented by officers. The fallback position was a material consideration attracting significant weight and clearly outweighed the identified conflicts with the development plan. In light of the above, and following a lengthy education of members on the principles of the fallback, the officer’s recommendation was followed and planning permission granted.