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Fall Back Positions

Planning Applications and Appeals can involve multiple moving parts and complex strategies to achieve success. As such, we always recommend that, when possible, you get advice from a professional town planner, to establish the key policies and material planning considerations which could impact a development.

One key consideration can be to establish a fall back position. A fall back position is a development which could occur at a site, and setting out this consideration has proved critical in the planning success in numerous planning applications and appeals.

This week (in June 2023), two planning appeals were allowed in South Oxfordshire for the development of large HMOs and establishing a fall back position was paramount to their success.

There are numerous pieces of Case Law on fall-back positions, including Mansell v Tonbridge & Malling BC [2016] EWHC 2823, which establish the legal principles relating to a fall back position. The three elements to a fall back position are as follows:

"First whether there is a fall back use, that is to say whether there is a lawful ability to undertake such a use; secondly, whether there is a likelihood or real prospect of such occurring. Thirdly if the answer to the second question is "yes" a comparison must be made between the proposed development and the fall back use."

Essentially, a fall back position must be a real prospect.

If you have a development and are considering a fall back position and would like advice from a town planner, please don't hesitate to get in touch.


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