All at sea

A couple of recent appeal decisions relating to shipping containers result in confusing guidance.

In the first case (DCS Number 400-027-058), the inspector refused to issue a certificate of lawfulness for a shipping container in Dorset, deeming its siting to be a use of land and therefore not immune from enforcement because it had been there for less than ten years. The inspector reasoned that the case turned on whether the container was a ‘building’ and therefore operational development as defined by section 55 of the Act. He explained that if it was a ‘building’ it was only necessary to prove, on the balance of probabilities, that it had been there for four years from the date of the application, the statutory time limit as set out in section 171B (1) of the Act. If it was not deemed to be a ‘building’ it was necessary to demonstrate, on the balance of probabilities, that it had been on the site for ten years from the date of the application, as set out in section 171B (3) of the Act.

Well established case law, the inspector continued, has established three principles for determining if something is a ‘building’ – size, degree of permanence and physical attachment. He observed that the container was an oblong structure with a rigid metal frame and insulated walls of the sort that generally provides a refrigerated storage facility.  The appellant  acknowledged that it was delivered and positioned on the site by specialist equipment and not constructed on the site. The inspector noted that it was not attached to the ground by any foundations or to any services such as water, drainage or electricity, and it could be lifted up and removed from the site by similar specialist equipment. It was a container, he ruled, not a ‘building’. Its location on the site was therefore a use rather than operational development as defined by section 55. As the container had been in situ less than ten years from the 2018 date of the application its siting was not lawful, he concluded.

Meanwhile in Essex, (DCS Number 400-027-061), an inspector dealing with an appeal against the refusal of planning permission for four containers for mixed storage related that a ‘building’ is defined in the Act as “any structure or erection”. By this definition, he determined, the containers would be ‘buildings’ and the proposal was thus for operational development. The containers would be substantial and weighty structures, he noted, finding it clear by the fact that a planning application had been made for a specific siting that they were intended to be permanent features. The proposed containers would therefore be new buildings amounting to inappropriate development in the green belt.

Further appeal examples relating to containers (in which inspectors have come to similarly differing conclusions about their planning status) can be found at section 21.3151 of DCP Online.