Town and country planning: FallbackSecond defendant seeking planning permission for development - fallback planning permission for part of property - developer appealing against local authority's failure to determine application - inspector allowing appeal - local authority appealing - whether inspector failing to consider real possibility of fallback permission being implemented - whether failing to take material consideration into account - claim dismissedWindsor and Maidenhead Royal Borough Council v Secretary of State for the Environment, Transport and the Regions and another: Queen's Bench Division: Administrative Court: Elias J:2 February 2001The second defendant developer (ABH) applied for planning permission to demolish 50-70 Moorbridge Road, Maidenhead (the property), and erect a new office building.

The existing property comprised two adjoining buildings: no 50-52, which was used for offices within class B1, and no 54-70, also with class B1 use, save for part of the ground floor, for which permission had been granted for a change of use to class A2 offices.

That part of the property was occupied by a timeshare operator, Club la Costa.The claimant planning authority did not give notice of its decision within the prescribed period, and ABH appealed.

The inspector identified the A2 use for which planning permission existed, and noted the claimant's contention that the lease of the ground floor to Club la Costa had not implemented that permission.

But he concluded it was unnecessary for him to determine whether the present use of the ground floor of no 54-70 was A2 use, and, after comparing the use for which planning permission already existed with the proposed use, he allowed ABH's appeal.The claimant sought to quash his decision pursuant to section 288 of the Town and Country Planning Act 1990.

It contended that: (i) the existing planning permission for A2 use amounted to a 'fallback' permission, and it was incumbent upon the inspector to have regard to ABH's ability to implement that permission; (ii) if there was no real possibility of the fallback use being implemented, there was no point in comparing that use with the proposed use; (iii) the inspector should, therefore, have made a finding as to the real likelihood of the fallback use being implemented, and; (iv) his failure to do so was a failure to have regard to a material consideration.

The claimant relied upon Brentwood Borough Council v Secretary of State for the Environment (1996) 72 P&CR 61.Held: The claim was dismissed.

It was not disputed that the likelihood of a fallback permission being implemented was a material planning consideration.

But ABH had intended to give effect to the fallback use by leasing the premises to Club la Costa, and there was no suggestion that that occupation was not bona fide.

The fact that the claimant disputed any A2 use by Club la Costa was not sufficient to raise doubts regarding the fallback permission.

The claimant made no suggestion at the inquiry that there was no real possibility, or only a remote possibility, of the A2 use being implemented.

The inspector did not have to make an express finding on that matter, since it was not in issue before him: Brentwood distinguished.Richard Ground (instructed by Sharpe Pritchard) for the claimants; Meyric Lewis (instructed by the Treasury Solicitor) for the first defendant; Joseph Harper QC (instructed by Clifford Joseph, of Maidenhead) for the second defendant.