Q & A 23.2/10
In a recent appeal decision, an Inspector held that field shelters for keeping ponies were not buildings as they were portable and mounted on skids. Instead, they amounted to a use of the land. I am unclear as to whether this use amounts to a material change of use that would need permission. Is the use of the field shelters incidental to the grazing of ponies and therefore agricultural which does not need permission, or are they a separate use in their own right?
I think the key here is to understand the often blurred distinction between the keeping of horses, which requires permission, and their mere grazing, which is an agricultural use that does not. Depending on their size and whether they have been constructed on site, their permanence and physical attachment to the ground, some horse shelters on skids have been held to be chattels rather than operational development. But a material change of use will only occur where they rest on land used without the necessary permission for the keeping horses. Thus if a shelter is stationed on land where horses simply graze, no material change of use will have occurred. In practice, however, the stationing of moveable horse shelters is invariably associated with the keeping of horses.
Horses have been kept on agricultural land for over 20 years without permission. A caravan initially used for storage was later occupied for a while as a dwelling. The owner is now seeking a certificate of lawfulness (LDC) for the caravan. However, my authority queries whether as the horse keeping use is unauthorised, enforcement action would be appropriate or should the owner be required to demonstrate that a change of use from agriculture to horses is now immune from such proceedings? The owner claims that the residential use of the caravan has ceased and it is now ancillary to the keeping of horses. But as the authority is unconvinced that the latter use is lawful, it questions whether the caravan can be ‘ancillary’. What would be the correct procedure?
Advice on enforcing planning control is found in PPG18 and Circular 10/97. Annex 8 of the circular sets out guidance on LDCs. A certificate of lawfulness cannot be granted for a use that is ancillary to an unlawful primary use. You are therefore correct in thinking that it is necessary to consider the application within the context of the lawfulness of the planning unit. But if the landowner can demonstrate that horses have been kept on the land without material interruption for at least 10 years, as opposed to simply being grazed, the existing use will be lawful. The current application should be refused and the applicant invited to submit a new application covering both the keeping of horses and the caravan. If they decline to do so, and the uses are considered by the authority to have some harmful effect that should be stopped or regulated in the public interest, it would be appropriate to take enforcement action.
Three orange steel containers have been sited in a field in the Green Belt. They are used to store straw, hay and feed for horses kept in stables also in the field. The containers are not sited on any foundation but have just been placed on the ground. Does this constitute development and if so is it as a building, other operations or a change of use?
The courts have established that there are three primary factors to distinguish a "building" from a material change of use. These are size, permanence and physical attachment to the ground. In this case, if the containers can be moved around without any difficulty, they will be chattels. A material change of use will only have occurred if the land on which they are sited does not already enjoy permission for the keeping of horses. But if, due to their size and lack of mobility, the containers have acquired a sufficient degree of permanence, they will be considered a building operation. The issue is covered at 23.213 of Development Control Practice.
The Mendip AONB Service is concerned about the increasing impact of horse related activities on landscape character and has encountered different interpretations of planning law by planning authorities in relation to certain activities. These centre on a) whether the use of a field for the grazing and exercising of horses requires planning permission, b) whether a ‘manege’ is development, and c) when does a field shelter become mobile enough to escape the need for permission? JR.
There can be few areas of planning control which raise so many legal difficulties in establishing whether permission is required. Your first query is the most contentious, as the outcome of court cases, particularly Sykes v Secretary of State for the Environment , has placed planning control into the invidious, some have said ludicrous, position of having to distinguish between horses that are grazing land, and horses that are kept on land. The former is not a material change from agricultural land, while the latter is. The matter is fully debated in Development Control Practice at (4.3441) and (23.2111). The remaining two parts of your query relate to whether or not works are substantial enough amount to operational development requiring planning permission by reason of size, degree of permanence and physical attachment to land. This can be very much a matter of judgement depending on the facts of each case, and thus inconsistency is bound to occur between one authority and another. However, in the case of maneges there is less room for interpretation difficulties as such developments normally involve roof structures, lighting columns and fences as well as substantial engineering works to create a flat area with suitable drainage and surfacing. I would hazard that only a very rudimentary manege, involving only the spreading of a surface such as bark chippings, would be likely to escape planning control. With regard to field shelters appeal cases have shown very varied approaches, as demonstrated in Development Control Practice at (23.213). GH.
In his response to a query as to whether so called mobile horse shelters require planning permission (Planning 1749 14 December 2007) GH correctly stated that many of these may not be development. We at the South Downs Joint Committee believe that the government should recognize the visual impact of such structures and include them in the definition of development. There is also uncertainty as to whether permanent structures for grazing horses benefit from Part 6 permitted development rights if they are located on an agricultural holding. In such cases where they fall within the Class limitations would they not be deemed reasonably necessary for the purposes of agriculture notwithstanding the section 336 definition of agriculture in the Town and Country Planning Act 1990? MS.
I wholeheartedly agree that planning legislation exempting non-permanent development from planning control is very long overdue for reform. The fundamental problem is, of course, that the court-led rules that have developed over the years to test for permanency, such as attachment to the ground, do not include any measure for contextual amenity impact, save only that large size may be a factor in the equation.
With regard to the other point you raise, it has long been established that horse keeping is not agriculture within the section 336 definition. This rules out the use of permitted development rights for buildings designed and used for horses. However, the situation is less clear cut in the case of multi-purpose buildings which were initially erected for bona fide agricultural purposes but have later been adapted for horses. This situation arose in a 1990 appeal case from Northamptonshire (DCS Number 100-023-281) where enforcement action had been taken against a structure at a farm containing 4 loose boxes. The council alleged that a horse had been kept in one of the boxes. An inspector accepted that the structure had been lawfully erected using agricultural permitted development rights. There had been a reasonable need for the building for housing lambs and calves, and it had been suitably designed for such a purpose. The notice was quashed, the inspector noting that the partial horse use did not affect his conclusion.
I would be interested to hear of reader’s experiences in similar circumstances where enforcement action has been taken against horse use of buildings originally erected using Part 6 rights. GH.
The judgment in Sykes v Secretary of State for the Environment  held that if horses were simply turned out on land with a view to feeding them from that land, clearly it was in use for grazing. It distinguished between horse grazing, which may be carried out without a material change of use of agricultural land, and horse keeping which would be a change of use. In the case of impermanent structures, such as ‘mobile’ field shelters, it has been held in subsequent cases that, not being buildings falling within the definition of development, their use is ancillary to a use for horse grazing. Where a permanent horse building has been erected on an area of land which has been used for horse grazing it would need planning permission as a building operation unless, as you suggest, agricultural permitted development rights could be claimed. However, as soon as a building such as a stable or hay store is commenced, this negates interpretation of the Sykes definition of "agricultural" horse grazing as a casual activity wholly dependent on the amount of grass available. It could then be argued that horses were being kept.on that land and that the use of any building erected could not be "reasonably necessary for the purpose of agriculture" as required if Part 6 permitted development rights are to be claimed. However, there remains a difficult legal point of timing to be resolved in that, at the moment of commencement of construction, a horse building may be said to be still within an agricultural unit and thus could lawfully take advantage of permitted development rights. I do not know of a case where the courts, or inspectors at appeal, have had to grapple with this particular point.
In conclusion it has to be said that the conditions whereby mere grazing can be demonstrated in the limiting terms of the Sykes judgment are very difficult to show and few have succeeded. GH.
My local authority is concerned at the increasing number of caravans and mobile homes stationed on land where there are stables, purportedly for rest and refreshment during the day. The result is a degraded landscape over which the authority appears to have no control. What does it take for these caravans to be considered to be occupied residentially and require permission?
The issue has been considered in relation to caravans stationed on farmland, as opposed to within paddocks used for the recreational keeping of horses. In Wealden District Council v Secretary of State for the Environment and Day , it was determined that the use of a caravan for the storage of animal feed and for shelter may be incidental to the permitted use of agricultural land. The court ruled that the use did not represent a breach of planning control, even though the caravan was designed for human habitation. So it is the Actual use of a caravan for residential purposes rather than the way it has been fitted out that determines whether a material change of use has occurred. Occasional overnight stays are likely to be de minimis. In a case from 1992 (DCS Number 40356623), an inspector concluded that the use of a caravan at a farm in Avon for 26 overnight stays in one year did not amount to a breach of planning control. However, such assessments will always be a matter of fact and degree.
I have read this decision and note that while the inspector does make this comment, he does not reject the appellant's contrary argument. Instead, he accepts that the other interpretation is a possibility. So I think that the debate on this unclear point is not quite finished. CL.