East Malling ‘fallback’ challenge

Challenge to the grant of planning permission for a change of use involving the demolition of an existing agricultural barn and residential bungalow, and construction of four detached dwellings. The judicial review was dismissed on all grounds, as was the appeal to the Court of Appeal, which provided leading commentary on the court’s approach to criticisms of planning officer’s reports.

The challenge related primarily to the position with regards to the “fallback position”, which involves, in the context of considering a planning application, a comparison of what is being sought by the planning application against what the applicant could do with the land without the planning permission sought. This consideration can include things such as previous grants of planning permission, but also what could be achieved through permitted development. This case primarily concerned what the applicant could achieve under permitted development Class Q, which permits certain development in respect of agricultural buildings – in particular, the barn and its conversion into three of the four proposed dwellings. The claimant’s position was that: (1) the extent of the floorspace of the building to be converted fell outside the scope of Class Q permitted development; (2) there was no more than a theoretical possibility of implementing a lawful fallback (i.e. the conversion under Class Q to three dwellings). A further ground was that contrary to national policy, the council erred in applying a “presumption in favour of sustainable development” because its local plan was not out of date. The judicial review was dismissed on all grounds and the claimant was subsequently granted permission to appeal to the Court of Appeal.

The issues raised in the appeal were whether the council: (1) correctly interpreted and lawfully applied the provisions of Class Q in the GDPO; (2) was entitled to accept there was a real prospect of the fallback development being implemented; (3) misunderstood or misapplied the “presumption in favour of sustainable development”. The Court of Appeal dismissed the appeal on all grounds, but set out now much-quoted commentary on the court’s approach to criticisms of planning officer’s reports; essentially that the court should be vigilant against excessive legalism and that officer’s reports should not be read with “undue rigour”, but with “reasonable benevolence”.