Permanent markers

In Just kidding around we reported an appeal case in which the issue of permanence was debated. Here’s another, not dissimilar, but which draws on some different case law. This appeal (DCS Number 200-007-302) concerns an enforcement notice directed at a freight container, sited in a Kent field, which was used for the storage of equipment associated with the cultivation of Christmas trees.

The appellant submitted that the storage container did not require planning permission because it did not amount to development within the meaning of section 55 of the Act. He argued that the placing of it on the land was not a building operation; the container did not rest on any foundations; it was relatively small in size and it was not connected to any utilities. Moreover, it was capable of being moved around the field either on logs or by attaching it to a wheeled container mover and pulling it with a quad bike.

The inspector recorded that relevant case law reveals that there is no single conclusive answer as to what constitutes a building operation. She explained that in Barvis v SSE [1971] three tests are set out; the size of the building or structure, the degree of permanence, and the degree of physical attachment to the land. No one factor is decisive. She also referred to the Woolley Valley case (R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012]) which concerned poultry units mounted on skids so that they could be pulled around the field by a tractor or a 4×4 vehicle when required. In this case the High Court held that the council had erred in law in taking too narrow an approach to the meaning of development. The term ‘building’ in section 336 of the Act has a wide definition which includes ‘any structure or erection’. Additionally, the council had not directed itself correctly in law on the issue of permanence, which has to be construed in terms of significance in the planning context. The poultry units were permanently in their field and there was no limit on the length of time that they would remain there. The ability to move them around the field did not remove the significance of their presence in planning terms. The visual and landscape impact of the units was not affected to any material extent by any periodic changes to their position in the field, the court determined.

Turning to the case before her, the inspector considered that, when viewed in the field against the backdrop of a hedge and new fencing, the size of the storage container was significant in the planning context. It had also not been moved since it was placed on the land and therefore had a permanent character. Whilst it was not physically attached to either the land or any utilities and there was no hardstanding underneath it to support it, she found as a matter of fact and degree that it was a building. Planning permission had not been granted by the council and so the matter alleged in the notice constituted a breach of planning control, she concluded.

More case law on size, permanence and physical attachment can be found at section 4.3112 of DCP Online and there is discussion about whether movable structures are development at section 22.112.