Simpson v Secretary of State for Communities and Local Government & Anor

A fall-back argument in planning law requires two matters to be established. First, the alternative use or operation must be identified with sufficient particularity to permit a meaningful comparison with the proposed development. Secondly, there must be evidence that the alternative is likely to occur. The degree of likelihood may itself be a material consideration, especially where the alternative would cause serious harm. Without evidence addressing both matters, an inspector is not required to treat the alleged fall-back as a material consideration. Earlier appeal decisions do not cure those evidential deficiencies.

The appellant challenged an inspector’s decision upholding an enforcement notice issued by Medway Council concerning the mooring and residential use of a vessel, together with associated physical works at a wharf. The challenge under section 289 of the Town and Country Planning Act 1990 concerned only ground (a), namely whether planning permission ought to be granted.

The appellant argued that the inspector had failed to consider a fall-back position. The asserted fall-back was first put as the continued permanent mooring of the vessel without residential use, and later as mooring ancillary to the use of the river for navigation. The central issue was whether either alleged alternative had been sufficiently established to require consideration in the planning balance.

1. The appeal was dismissed. The inspector’s decision disclosed no error of law in rejecting the fall-back argument.
2. The essence of a fall-back argument is a comparison between the proposed development and an alternative use or operation which could occur without planning permission. Following Snowden v Secretary of State for the Environment [1980] JPL 749, the alternative must be identified with sufficient particularity to make the comparison possible.
3. The alternative must also be shown to be a realistic possibility. Following South Buckinghamshire District Council v Secretary of State for the Environment CO/184/98, 22 June 1998, likelihood matters both because it would be unreasonable to rely on harm from an unrealistic alternative and because the degree of likelihood may affect the weight given to that harm.
4. The evidence before the inspector did not establish the nature, character or intensity of the alleged ancillary mooring use. It did not identify what vessels might moor, for what purpose, or for how long. There was also no evidence of the likelihood that the use would occur. The same evidential defect applied to the proposed continued permanent mooring of the vessel if residential use ceased.
5. The inspector therefore had no material basis on which to treat a fall-back position as a factor favouring permission. The earlier appeal decisions did not express a view about what mooring could take place without planning permission and did not remedy the deficiencies in the appellant’s case.

• Inspector: upheld Medway Council’s enforcement notice, dismissed the appeal on grounds (a), (c) and (d), amended the requirements under ground (f), and dismissed the related lawful development certificate appeal.
• High Court (Administrative Court): dismissed the appeal under section 289 of the Town and Country Planning Act 1990.