Schneck v Secretary of State for Levelling Up, Housing and Communities & Anor [2022] EWHC 3335 (Admin)
Schneck fallback position is an important Planning Court judgment on three separate issues: affordable-housing viability, the flood-risk Sequential Test, and how much certainty is needed before permitted development can be treated as a fallback.
The challenge succeeded on affordable housing and the Class AA fallback. It failed on flood risk.
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- Neutral citation
- [2022] EWHC 3335 (Admin)
- Court
- High Court of Justice, King's Bench Division, Planning Court
- Judgment date
- 21st December 2022
- Judge
- Mr Tim Smith, sitting as a Deputy High Court Judge
- Case number
- CO/1952/2021
What the Schneck fallback position case was about
Emerald House in Newbury had originally been offices. Permitted development rights had already authorised conversion to 109 flats. Mr Schneck then sought planning permission for a rooftop extension containing another 13 flats.
West Berkshire refused permission because the proposal did not provide affordable housing. On appeal the Inspector also raised flood risk and concluded that the Sequential Test had not been passed. A new Class AA permitted development right for upward extensions had meanwhile come into force and was relied upon as a fallback.
The Inspector misinterpreted the affordable-housing policy
The applicant had supplied a viability assessment showing that the 13-flat proposal could not viably provide affordable housing. The council did not challenge that evidence.
Local policy CS6 said that affordable housing provision was subject to the economics of provision and expressly contemplated provision below the normal percentages where justified through a viability assessment.
The court held that the Inspector had misinterpreted the policy by treating the absence of a completed negotiation or contribution as automatically creating conflict with CS6. That error mattered because it affected the statutory starting point under section 38(6).
This part of Schneck is tied closely to the wording of the particular West Berkshire policy. It is not a general rule that a viability assessment automatically removes an affordable-housing requirement. See our guide to affordable housing in planning.
The Inspector was entitled to raise the flood-risk Sequential Test
Flood risk had not been a reason for refusal by the council, but the Inspector identified that the site lay partly in Flood Zones 2 and 3 and asked the parties for further information.
The court rejected the challenge to that part of the decision. An Inspector is not confined to a council’s reasons for refusal and was entitled to consider compliance with national and local flood-risk policy. The reasons for finding that the Sequential Test had not been passed were legally adequate.
For the current planning position, see our Flood Risk Assessment and Sequential Test guidance.
Class AA was a real fallback even without prior approval
The applicant argued that, if planning permission were refused, an almost identical rooftop scheme could be pursued under the new Class AA permitted development right.
The court held that the Inspector had fallen into error when assessing that fallback. A fallback does not need to be probable or already approved before it can be material. It needs to be more than merely theoretical.
The appellant had analysed the Class AA limitations and prior approval matters in detail, and the council had accepted that the proposal could fall within the new right. The Inspector should not have discounted the fallback simply because a prior approval application had not yet been made or because its outcome was uncertain.
A prior approval process does not prevent a permitted-development fallback
The existence of prior approval controls does not mean there is no lawful fallback until prior approval has actually been secured. The likelihood of satisfying those controls can affect the weight given to the fallback, but it does not automatically prevent the permitted development right from being a material consideration.
That is consistent with the wider fallback line of authority, including Mansell [2017] EWCA Civ 1314 and Planning Geek’s fallback position guide.
The Class AA provisions themselves should always be checked in their current form. See our page on Class AA flats above detached commercial or mixed-use buildings.
Two grounds succeeded and one failed
The court allowed the claim on the affordable-housing ground and on the Class AA fallback ground. The flood-risk ground was dismissed. The Inspector’s appeal decision therefore could not stand.
Read the full Schneck judgment
The approved Planning Court judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Schneck Fallback Position Case Law Page Updated: 9th September 2026