Is Your Planning Refusal Unreasonable?

What is a "Fallback Position"?

The Plan B Argument

• A fallback position is a lawful alternative development you could carry out if your main planning application is refused.

• Most commonly, this is what you are entitled to build under your Permitted Development (PD) rights.

• It is a "material planning consideration," meaning the council must take it into account when making a decision.

• The argument is: "If you refuse this well-designed application, we will build our less desirable (but lawful) PD scheme instead."

When you submit a planning application, it’s easy to feel like the council holds all the cards. They judge your proposal against local policies on design, size, and impact. But what if you have a powerful card of your own? The fallback position is a strategic planning argument that leverages your existing Permitted Development (PD) rights to strengthen your case for a full planning application. It's not a loophole; it’s a legitimate planning principle that can make the difference between refusal and approval.

How Does the Fallback Argument Work in Practice?

Imagine you want to build a small, well-designed dormer loft conversion with beautiful materials that complement your house. You submit a planning application because it's slightly larger than PD allows or perhaps is on the front elevation. The planning officer indicates they are likely to refuse it on subjective "design" grounds.

This is where you deploy the fallback argument. You demonstrate to the officer that your Permitted Development rights allow you to build a much larger, boxier, and less attractive dormer on the rear roof slope.

The argument is simple and powerful: your proposed design is a clear planning improvement over the lawful fallback position. Refusing your thoughtful application would likely result in a worse outcome for the street scene and neighbouring properties. Faced with this choice, a planning officer will often see your original proposal as the more reasonable and preferable option.

Establishing a Credible Fallback Position

For this argument to be effective, your fallback position can't be a mere fantasy. It must be a genuine and likely prospect. The council and, if it goes to appeal, the Planning Inspectorate, will apply two key tests:

1. Is it Lawful? You must be absolutely certain that your fallback scheme fits within PD rules. It is highly recommended to submit drawings of your fallback scheme alongside your main application to prove it is compliant. An even stronger position is to have a Certificate of Lawfulness for your fallback scheme already approved.

2. Is it a Realistic Prospect? You must have a real intention of building the fallback scheme if your preferred application is refused. You can’t just invent a monstrous scheme you would never build as a threat. The council must believe you will follow through. Including a statement of intent in your application can help.

Here’s how you can present this in your Design and Access Statement:

Learning from Planning Appeals

The power of the fallback position is repeatedly confirmed in planning appeal decisions. The Planning Inspectorate often grants permission to applicants who have been unreasonably refused by their local council.

For example, in an appeal in Bristol (APP/Z0116/D/21/3272928), the Inspector overturned the council's refusal for a dormer, noting that a larger dormer could be built under PD. The Inspector stated the fallback position carried "significant weight" in the decision, as the proposed design was an improvement on what could otherwise be built. Citing such precedents in your application shows the council you have done your research and are prepared to appeal an unreasonable refusal.

While not a guaranteed route to success, a well-argued fallback position shifts the dynamic of your application. It forces the planning officer to weigh your proposal not in isolation, but against a potentially less desirable, yet entirely lawful, alternative. It’s a logical, evidence-based strategy that every homeowner should have in their toolkit.