Mansell vTonbridge And Malling Borough Council

Under Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015, the 450-square-metre limit applies to the cumulative floor space actually changing use. It does not apply to the total floor space of the agricultural building.

A fallback development is material where there is a real prospect of its implementation. A possibility suffices; probability is unnecessary. Whether that threshold is met is a fact-sensitive matter of planning judgment, without fixed evidential prerequisites.

The NPPF presumption in favour of sustainable development operates only through paragraph 14. Where it is not engaged, relevant sustainability policies may still be weighed under section 38(6) of the Planning and Compulsory Purchase Act 2004, without the added force of the presumption. An officer’s report renders a decision unlawful only where a distinct, material and potentially causative defect has misled the committee.

Mansell vTonbridge And Malling Borough Council concerned planning permission for the demolition of an agricultural barn and bungalow and their replacement by four dwellings on countryside land. The proposal conflicted with the development plan. The planning committee nevertheless accepted its officer’s recommendation after considering the available fallback development and other material considerations.

Garnham J dismissed the neighbouring owner’s claim for judicial review in [2016] EWHC 2832 (Admin). The claimant appealed on three issues: the interpretation of Class Q of the Town and Country Planning (General Permitted Development) (England) Order 2015; whether there was a real prospect of the fallback being implemented; and whether the officer had misunderstood or misapplied the NPPF presumption in favour of sustainable development.

1. The appeal was dismissed unanimously. Lindblom LJ delivered the principal judgment. Hickinbottom LJ and the Chancellor agreed.

2. Sub-paragraph Q.1(b) of Class Q restricts the cumulative floor space actually changing use to 450 square metres. It does not restrict the total size of the agricultural building. This literal construction accords with paragraph 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015, under which a building includes part of a building. It also avoids making Class Q unavailable merely because the building’s total floor space exceeds 450 square metres. Sub-paragraph Q.1(h) serves a distinct purpose by preventing existing residential space or successive Class Q developments from producing more than 450 square metres of residential floor space overall. The parallel wording in Classes M and N did not support a different construction.

3. The council lawfully treated the fallback as a material consideration. Following Samuel Smith Old Brewery (Tadcaster) v Secretary of State for Communities and Local Government [2009] J.P.L. 1326, a real prospect need not be probable or likely; a possibility is sufficient, provided it is not merely theoretical. No universal rule requires an existing permission, a firm design or a precise statement by the landowner about using permitted development rights. The necessary degree of evidence depends on the circumstances and is a matter of planning judgment. The evidence and planning history amply supported the committee’s conclusion that residential fallback development would be pursued.

4. The NPPF presumption in favour of sustainable development was not engaged, and the officer did not treat it as engaged. Applying Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893, the presumption exists solely in paragraph 14 and is not a free-standing material consideration. The officer instead lawfully considered the proposal’s sustainability under relevant NPPF policies. He then balanced those considerations against the development-plan conflict, as section 38(6) of the Planning and Compulsory Purchase Act 2004 required.

5. A planning officer’s report must be read fairly, as a whole and with reasonable benevolence. The court may intervene only where a distinct and material defect has misled the members and the decision would or might otherwise have been different. The officer’s report contained no such defect. Courts should avoid minute legalistic dissection of reports intended for councillors and should respect the planning judgment entrusted to the decision-maker.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal in Mansell vTonbridge And Malling Borough Council [2017] EWCA Civ 1314 and upheld the dismissal of the judicial review claim.
2. Administrative Court, Planning Court: Garnham J dismissed the claim for judicial review of the planning permission in [2016] EWHC 2832 (Admin) .