Raffaele Gambone v Secretary of State for Communities and Local Government [2014] EWHC 952 (Admin)
Gambone fallback position is a useful High Court authority because it separates two questions which are sometimes muddled together: whether a fallback is capable of being a material consideration at all, and how much weight the decision-maker should then give it.
The challenge arose from a large garden building in Wolverhampton which the owner said could be replaced by a similar Class E outbuilding if planning permission to retain the existing building were refused.
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- Neutral citation
- [2014] EWHC 952 (Admin)
- Court
- High Court of Justice, Queen's Bench Division, Administrative Court
- Judgment date
- 25th February 2014
- Judge
- Ian Dove QC, sitting as a Deputy Judge of the High Court
- Case number
- CO/10954/2013
What the Gambone fallback position case concerned
Mr Gambone had previously sought permission for a bungalow behind 87 to 89 Oxley Moor Road. A building was then constructed and became the subject of an enforcement notice.
An Inspector rejected the argument that the building was lawful under Class E. Although it contained games and fitness equipment, its design, layout, kitchen facilities, separate shower and toilet, parking and previous planning history all pointed towards a detached dwelling rather than a building required for a purpose incidental to the enjoyment of the main house.
Mr Gambone later applied to alter and retain the building as a workshop and gym or games area ancillary to the dwelling. When that permission was refused, he relied on a fallback: if forced to demolish the existing structure, he said he could erect a similar or less attractive outbuilding under Class E permitted development rights.
Gambone sets out a two-stage fallback approach
Ian Dove QC, sitting as a Deputy High Court Judge, explained that the first question is whether the alternative development is capable of being a material consideration. The threshold is whether there is a greater-than-theoretical possibility that it might occur.
If that threshold is crossed, the second question is weight. That is a fact-sensitive planning judgment. Relevant matters can include how likely the fallback is to occur and the scale of the planning harm or benefit associated with it.
This is why a fallback can be material but still receive very little weight.
The fallback can be less harmful than the proposal
The court rejected any suggestion that fallback arguments only work where the fallback would be more harmful than the development applied for.
Comparative harm belongs mainly at the second stage, when the decision-maker decides what weight to give the fallback. An alternative which would cause less harm can still be a material consideration if there is a real rather than merely theoretical prospect of it occurring.
A section 78 Inspector does not have to decide a certificate question
The planning appeal was under section 78. The Inspector therefore did not have to carry out the formal determination that would be required on an application for a certificate under section 191 or 192.
That does not prevent permitted development rights being considered as a fallback. The decision-maker may assess the claimed legal entitlement sufficiently to decide whether it is a real possibility and what weight it deserves, without issuing a binding certificate decision.
The Inspector’s reasons were adequate
The Inspector concluded that recreating essentially the same dwelling-like structure was not a realistic fallback, particularly given the existing enforcement position. He nevertheless considered what a genuinely Class E-compliant alternative might look like and found it likely to be less strident and less harmful.
The High Court held that this reasoning was lawful and adequately explained. The related procedural-fairness arguments also failed. The claim was dismissed.
Gambone remains part of the modern fallback line of authority
The two-stage explanation in Gambone has been cited repeatedly in later planning cases. Read it alongside Samuel Smith [2009] EWCA Civ 333, Mansell [2017] EWCA Civ 1314 and our practical guide to a fallback position in planning.
For the permitted development right at the centre of this case, see the current Class E outbuildings guide.
Read the full Gambone judgment
The full High Court transcript is held locally in the Planning Geek case law library. I have not found a stable free primary or official full-text copy online. Gold Members can open the protected PDF below.
Gambone Fallback Position Case Law Page Updated: 9th September 2026