Fallback position in planning: when an alternative scheme matters

 

A fallback position is an alternative use or development which could lawfully take place if the planning permission being sought is refused. It can be an important material consideration because a council or planning inspector may need to compare the proposal in front of them with what could happen instead.

The fallback might be an existing planning permission, an established lawful use which has not been abandoned, development available under permitted development, or another lawful route which has a real prospect of being used. It does not have to be the applicant’s preferred scheme and it does not have to be more likely than not to happen.

But merely inventing a worse alternative on paper is not enough. The courts have developed a practical test: the fallback must be legally available, there must be more than a merely theoretical prospect of it happening, and the decision-maker must then decide how much weight it deserves in the planning balance.

 

What is a fallback position?

 

The phrase is planning shorthand rather than a special type of application. It describes something which could happen to the land if the current proposal does not obtain permission.

A simple example is a householder extension. A homeowner may apply for an extension which needs planning permission, while also having a smaller extension available under permitted development rights. If the permitted development scheme would cause similar or greater planning harm, the council can take that alternative into account when deciding whether the application scheme is acceptable.

The same idea can apply on much larger sites. An extant planning permission, a lawful commercial use, an agricultural building conversion, or a partially implemented permission may all potentially create a fallback position.

The fallback does not itself grant permission for the new proposal. The normal starting point remains the statutory development plan. The fallback is one of the material considerations which can affect the final planning balance.

 

The three questions to ask about a fallback position

 

The modern cases can be reduced to three practical questions.

• Is the fallback legally available? There must be a lawful route by which the alternative development or use can occur
• Is there a real prospect of it happening? The prospect must be more than merely theoretical, but it does not have to be probable or likely
• What weight should it receive? Once it is a material consideration, the decision-maker compares its likelihood and planning effects with the proposal being considered

This is deliberately not a rigid formula. The courts have repeatedly stressed that fallback cases are fact-sensitive and that the weight given to a fallback is an exercise of planning judgment.

 

Gambone: materiality first, weight second

 

Gambone v Secretary of State for Communities and Local Government [2014] EWHC 952 (Admin) is useful because it separates two questions which are easily confused.

First, the decision-maker asks whether there is a greater than theoretical possibility of the fallback taking place. If there is, it is capable of being a material consideration. Secondly, the decision-maker decides what weight to give it. At that stage the likelihood of implementation and the comparative planning effects become important.

A fallback can therefore clear the relatively low threshold for being material but still receive little weight. Equally, a readily implementable fallback which would cause greater planning harm can become a powerful consideration in favour of the application scheme.

 

What can create a fallback position?

 

Common examples include:

• an existing or extant planning permission which can still lawfully be implemented
• permitted development rights under the GPDO
• a lawful existing use which could continue or resume
• a development already physically present on the land
• a prior approval route which has a real prospect of being successfully used
• a certificate of lawfulness or other evidence confirming the lawful position

A certificate is useful evidence, but the legal principle is not that every fallback must first have a certificate or a separate planning permission. What matters is whether the alternative route is genuinely lawful and sufficiently real on the facts.

For example, a Class Q conversion can sometimes be a powerful fallback when a different residential scheme is proposed for an agricultural building. The August 2026 NPPF also creates a separate question about whether an implemented non-agricultural use may affect a later previously developed land (PDL) redevelopment argument; that is site-specific and should not be confused with the fallback principle itself. Likewise, a householder proposal may be compared with what could be built under the householder permitted development rights.

 

Samuel Smith: a real prospect is not the same as a probability

 

The Court of Appeal decision in Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] EWCA Civ 333 is one of the foundations of the modern fallback test.

The case concerned the former Gascoigne Wood Mine site. UK Coal wanted to retain and reuse large former mine buildings with the rail infrastructure rather than remove them. There was uncertainty about whether a suitable occupier would actually be found.

The Court of Appeal held that a ‘real prospect’ is used as the opposite of a merely theoretical prospect. The alternative does not have to be probable or likely. A possibility can be enough. The court also warned that fallback cases are highly dependent on their individual facts.

That distinction remains important. At the first stage the decision-maker is not asking whether the fallback is more likely than not. The question is whether it has crossed the line from theoretical to real.

 

Mansell: permitted development can be a powerful fallback

 

Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314 is now the case most often cited when a fallback relies on permitted development rights.

The application concerned redevelopment at Rocks Farm in East Malling. The proposal conflicted with the development plan, but the council considered what could happen instead. The agricultural barn could potentially be converted to homes using Class Q rights, while an existing bungalow could also be replaced. The council regarded that more piecemeal alternative as a realistic fallback and considered the application scheme to be a more coherent form of development.

The Court of Appeal confirmed that there is no universal rule requiring a detailed fallback design, an existing separate planning permission, a development-plan allocation, or a precise statement from the landowner explaining exactly how the fallback will be carried out.

In some cases that degree of evidence and commitment may be needed. In others it may not. The question is for the decision-maker, using planning judgment in the particular circumstances.

This is why simply saying ‘I have permitted development rights’ is not always enough, but equally a council cannot insist on a rigid checklist which the law does not require.

 

Schneck: prior approval does not require certainty

 

Schneck v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 3335 (Admin) shows how the test works where the claimed fallback still involves a prior approval process.

The case concerned a former office building in Newbury which had already undergone a partial residential conversion. The applicant sought permission for additional flats in a new rooftop floor and argued that newer Class AA permitted development rights provided a fallback route.

The inspector gave the fallback limited weight because prior approval had not been obtained and there was uncertainty about whether it would be granted. The High Court found that the inspector had effectively applied too demanding a test. The correct threshold was not certainty. The applicant had advanced detailed evidence addressing the prior approval criteria, and the fallback only needed to have a real prospect rather than be guaranteed.

The practical lesson is not that every unapproved prior approval scheme automatically counts as a strong fallback. It is that the absence of prior approval cannot by itself justify applying a test of certainty. The evidence still needs to show a lawful and genuinely realistic route.

 

How much weight should a fallback receive?

 

Crossing the ‘real prospect’ threshold does not mean the fallback receives decisive weight.

Once it is accepted as a material consideration, the decision-maker moves to the second stage. The questions then include:

• how likely the fallback actually is to happen
• whether the owner has taken practical steps towards implementing it
• whether there are legal, physical or commercial obstacles
• what planning harm or benefit the fallback would cause
• how those effects compare with the application proposal

A fallback with only a modest prospect of implementation may receive little weight. A scheme which is ready to be implemented and would cause materially greater harm may receive substantial weight.

This second stage is where evidence of intention, drawings, prior approval submissions, implementation work, contracts, viability information or other practical steps can become important. Those matters are not fixed legal prerequisites in every case, but they can influence the weight given to the fallback.

 

Can a worse fallback help a better planning application?

 

Yes. This is one of the main practical uses of the principle.

If the applicant can lawfully carry out development which would be more harmful than the scheme for which permission is sought, that comparison can weigh in favour of the application. The decision-maker is entitled to consider the real-world consequences of refusing permission, rather than pretending the site would simply remain unchanged.

That can matter to issues such as visual impact, openness, neighbour amenity, landscape effects, the number or position of buildings, traffic movements and the intensity of a lawful use.

But the comparison must be genuine. A contrived fallback with no real prospect of implementation should not be used as a device simply to make an unacceptable proposal look better.

 

A fallback position and the development plan

 

A fallback can be important even where the proposed development conflicts with the development plan. Section 38(6) of the Planning and Compulsory Purchase Act 2004 requires decisions to be made in accordance with the development plan unless material considerations indicate otherwise.

A genuine fallback is capable of being one of those material considerations. The decision-maker still has to identify the development-plan conflict and then decide whether the fallback and any other considerations justify a different outcome.

A newly adopted local plan can change the weight of an earlier planning decision without, by itself, removing an extant permission. The separate question is whether that permission remains legally available and has a real prospect of being implemented.

The Ugley three-home fallback appeal illustrates the distinction. Permission in principle followed by technical details consent had produced an extant permission for three homes. The Inspector gave that fallback significant weight when allowing five homes, despite the new Local Plan, because the alternative would cause similar locational and transport harm. It was a comparison of the realistic alternatives, not a rule that any existing permission overrides the plan.

It is therefore usually better to set the argument out clearly in a Planning Statement rather than leave the council to work it out for itself.

 

How to evidence a fallback position

 

The evidence required depends on the case, but a useful submission will usually identify:

• the exact lawful route relied upon
• the plans, permission, lawful use or permitted development right which creates it
• any conditions, limitations or prior approval requirements
• why the fallback can lawfully be implemented on this particular site
• why there is a real prospect that it will be used if the application is refused
• the planning effects of the fallback
• a clear comparison between those effects and the application scheme

If the argument relies on permitted development, do not assume that the existence of a GPDO class is enough. Check every relevant limitation, condition and prior approval requirement. Our GPDO section explains the main permitted development classes.

 

Fallback positions on appeal

 

The same principle applies on a planning appeal. If a council has refused permission without properly addressing a genuine fallback, the fallback should be clearly evidenced in the appeal case.

An inspector is entitled to reach a different planning judgment from the council about the weight of a fallback, provided the correct legal approach is used. Equally, an inspector must not dismiss a fallback by applying a higher test than the law requires.

See our Planning Appeals section for the appeal routes and current procedures.

 

Fallback position checklist

 

• Identify exactly what the fallback development or use is
• Check that it can lawfully take place
• Check any GPDO conditions, limitations or prior approval requirements
• Explain why the prospect is more than merely theoretical
• Provide evidence of intention or practical implementation where it helps
• Compare the fallback impacts with the proposed development
• Explain what weight you say the fallback should carry
• Put the case expressly into the Planning Statement or appeal statement

 

Where to go next

 

For the wider decision-making framework, read what is a material consideration and our guide to the Development Plan. If the fallback relies on development that can happen without a fresh planning permission, continue to our permitted development and GPDO guides.

 

Fallback position cases and legislation

 

• Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] EWCA Civ 333
• Mansell v Tonbridge and Malling Borough Council [2016] EWHC 2832 (Admin): the High Court decision
• Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314: the Court of Appeal decision
• Schneck v Secretary of State for Levelling Up, Housing and Communities [2022] EWHC 3335 (Admin)
• Gambone v Secretary of State for Communities and Local Government [2014] EWHC 952 (Admin), which explains the two-stage approach to materiality and weight. The same approach is expressly reproduced and applied in R (Friends of the West Oxfordshire Cotswolds) v West Oxfordshire District Council [2024] EWHC 2291 (Admin)
• Planning and Compulsory Purchase Act 2004, section 38

Other Planning Application Sections

 

Fallback Position Page Updated: 7th September 2026