Development's fall back position need not be probable, says High Court

The judge said that the Council's planning committee had not been misled in relation to whether the proposed development's fall back position was a material consideration in making the decision to grant permission.

The challenge to the permission had been brought by Zurich Assurance Limited which owns a shopping centre in Scunthorpe. The Council's planning officer and planning committee had taken into account as a material consideration in their decision to grant permission the fact that Simons had a fall back position to the proposed development which was a retail development of an existing garden centre on the site.

Zurich argued that, because Simons did not have a lawful development certificate for retail use on the site, the fall back retail development could not be a material consideration.

However, the judge said that the prospect of the fall back position does not have to be probable or "even have a high chance of occurring". It has to be only "more than a merely theoretical prospect," he said.

"Where the possibility of the fall back position happening is "very slight indeed" or merely an "outside chance", that is sufficient to make the position a material consideration," the judge said.

Zurich also said that the planning officer had misled the planning committee by not telling them that national policy directed that the application should be refused because Simons had not fully complied with the requirement under national policy to apply the 'sequential test' in its application.

The officer had said in his report to the committee that he felt that the economic benefits of the development were material considerations which outweighed any non-compliance with the sequential test.

The judge said that the officer had performed "the exercise he must perform" to see whether the presumption of refusal under national policy was outweighed by other material considerations.

"The officer considered that the presumption of refusal was displaced in this case by, at least primarily, the economic benefits that this development would bring to the area," the judge said. "That was a conclusion based on planning judgment to which the officer was entitled to come, and which the planning committee were entitled to follow".