Operational development Q & A DCP Section 4.31

A basic definition of operational development is to be found in Parkes v SOS 11/1/1978 where operations were stated to result in some physical alteration to the land itself, as opposed to material changes of use which did not interfere with the actual physical characteristics of land. Although this statement is a little simplistic, and the definition it attempts is by no means that clear cut, it serves as a basic yardstick. As already described, operational development is divided into four categories, "building, mining, engineering and other operations", and each of these need to be looked at in turn to establish how they should be defined, and the various ways in which they have been interpreted over the years.

Q & A    4.31/10

A company produces mobile chicken houses measuring some 20metres x 7 metres, housing up to 1,700 birds. It claims that the houses may be moved annually on what are likened to be sledges. They are not affixed to the ground and only rest on it by reason of their weight. Is there a building operation involved?

The thrust of decisions made on appeal in relation to whether structures are operational development or merely "chattels" would suggest that buildings of this size would be thought to be development. Even though they may not be fixed to the ground and are theoretically capable of being moved, it is likely that a conclusion would be reached that their size and weight suggested permanency.

Response

My authority is currently dealing with two cases concerning units measuring 21 m in length, 8 m in width and with a ridge height of 4.2 m. The structures are constructed on site and once the laying life of the poultry has been completed may be moved onto fresh pasture. This council's legal opinion is that such poultry houses are development, although this is contested by the manufacturing company. It states that other councils have deemed the buildings not to be development, but on closer investigation it has been established that the buildings they referred to are about one third of the size and transportable on the back of a low-loader. Have any other local authorities been involved in a similar debate?

Would you consider that the positioning on land of a mobile mast would constitute development?  The equipment I have in mind can be erected and taken down in 30 minutes and has a footprint of approximately 4 square metres.

There are appeal cases demonstrating that a wheeled mobile mast may not be considered to be development, and reference should be made to the Bromley case reported in Casebook 25 August 2000 where mobile floodlighting units which would not require permission were considered to provide a material fall back.

My council has recently been asked whether permission is required for the installation of two searchlights on top of a restaurant. The installations would not be seen from the public realm although the beams of lights would be visible from some distance. Is permission required?

It is necessary to examine whether permission is needed as development requiring a planning application and also whether the searchlights could be considered an advert under the Advertisement Regulations. As no physical works would be visible the court judgement in Burroughs Day v Bristol City Council 18/1/96 may be used to assert that no development is involved. However, it is likely that the beams would be considered to be an advertisement following an appeal decision last year in Guildford (DCS No. 055-550-003).

Does the installation of vertical car stackers (two car height) within the underground car park of an office building granted planning permission in the early 1990s require planning permission? A condition attached to the permission said that the development shall be carried out in strict accordance with the submitted plans.

The condition was satisfied when the development was completed and thus there is now no breach.  The question remains as to whether fresh development has occurred but section 55(2)(a) states that works which only affect the interior of the building, are not development. Although car stacking may not be in accord with the advice in PPG13 it would appear that there is nothing that may be done to bring these stackers within planning control.

I live next to an old established golf course. Some of the existing tees have been substantially enlarged and heightened by the use of imported earth and turf. One of these tees is within 3 metres of my garden enabling players to look over my fence. I believe that the deposit of material in this way requires planning permission, but this is disputed by an officer of the council.

This development, involving the use of earth, could not be considered as the deposit of making it a material change of use by reason of section 55(3)(b) of the Town and Country Planning Act 1990. However, there are no permitted development rights relating to golf courses and the substantial heightening of land by mounding or embankmenting could be an engineering operation requiring planning permission, using the judgement in the 1980 Ewen Developments Ltd court case. The question is, therefore, whether the work to these tees is sufficient enough to constitute an engineering operation. Unfortunately there is no straightforward answer as this depends on the facts of each case.

I am dealing with a case where my council is attempting to argue that the application of "one-way" material to the inside of window glass is development requiring planning permission. It is maintaining that there is "material effect on external appearance", but concedes that if applied externally the material could be classified as the "application of colour" and thus be permitted development by virtue of Part 2 Class C of the GPDO. A further question arises as to whether the window treatment is an advertisement as the window film contains logos.

The question of whether the application of such film is development by virtue of having a material effect on external appearance of the building, has to be preceded by a conclusion as to whether there is operational development at all. While the courts have held that painting could be a building operation I would have thought that the application of film to the internal face of a window is distinguishable. In addition consideration is still required as to whether the application of the film is an alteration "only affecting the interior of the building" and therefore not development by reason of section 55(2)(a) of the Town and Country Planning Act 1990. I am sure that your authority is right in concluding that applied externally the film would be permitted development.

On the matter of whether the film could be considered to be an advertisement, the logos used could well bring the film within the statutory definition at section 336 of the Town and Country Planning Act 1990.  However, it is likely that the "display" would enjoy deemed consent because of Schedule 3 Class 12 of the current Advertisement Regulations, and thus enjoy deemed planning permission by reason of section 222 of the Town and Country Planning Act 1992. GH

Response

I note your view on whether one-way film has a material effect on the external appearance of a building, but what is the position regarding the need for listed building consent?

Consent is required for any alterations to a listed building which would affect its character. I would have thought that the application of one-way film, internally or externally, would affect the character of a listed building in most circumstances. There is an appeal decision from Glasgow (illustrated in Development Control Practice at 4.3151) where a reporter felt that the use of tinted glass in an office building required listed building consent, but I do not know of a specific case related to one-way film.

Do floodlights mounted onto the face of a building with the purpose of illuminating the elevation require planning permission on the basis of materially alterating the external appearance of the building? Or do they require advertisement consent on the basis that they serve to draw attention to the building?  If it is the former, can the illumination itself be considered to alter the external appearance of the building or must account only be taken of the source or fitting.

It is possible that external floodlighting apparatus fixed to a building could be held to have a material effect on external appearance, much depending on the extent and visibility of the works. A prerequisite of any test for material effect is that a building operation has been carried out, but cases would suggest that this would be the case if physical works such as nailing or screwing to the fabric of the building have occurred. It has been an interpretation of the court case Royal Borough of Kensington and Chelsea v C.G.Hotels [1980]  that the switching on of lighting when there was no material effect on external appearance when not switched on, did not create a further act of development when illuminated. Of course, if there is material effect on external appearance when lighting is not switched on it would be immaterial to consider the effect of illumination.

As to whether lighting on its own could be construed to be an advertisement this has been shown to be the case in several instances where illumination has drawn attention to commercial premises and was held to be a "sign".  However, the position is less clear where a building is lit for security purposes and in a 1998 case from Shepway, lights which illuminated the front elevation of a Curry's superstore, were not considered to be an advertisement.

I have recently joined a local authority which has previously taken the view, in the case of replacement windows, that the appropriate test for whether planning permission is required is whether there is a material alteration to the external appearance of the building.  All of my previous authorities have held that all such windows always require permission, except at "dwellinghouses", even in "like for like" situations. My view is that the "external appearance" test does not apply if the works constitute development and would only be applicable when they do not.

What is the correct interpretation?

This is a common source of confusion. In my opinion the correct approach is to consider first whether the works involving replacement windows are development in terms of building operations having occurred in the terms of section 55(1) of the Town and Country Planning Act 1990. If that is the case those works may be examined to see whether there is material effect on external appearance in terms of section 55(2)(a). If not, no planning permission is required. In the case of replacement windows there is normally little doubt that building operations have occurred due to the specification in the Act that building operations include those normally undertaken by a person carrying on business as a builder. Therefore in the "like for like" situation you pose, there is a building operation but because there is very unlikely to be a material effect on external appearance, no permission is required.

Response

I do not agree with your answer that window replacement with a UPVC version is a building operation. Most replacements of this sort are not carried out by a builder, rather by a glazing company. I have been through this at appeal many times now and planning authorities accept that, where the aperture has not been changed, replacement UPVC windows do not require planning permission.

I stick to my guns and cite an appeal case from North West Leicestershire where an inspector considered the replacement of wooden windows with plastic versions using the same openings. He stated that he was satisfied that the insertion of these windows constituted building operations which required planning permission because they materially affected the external appearance of the building. However, this issue is rarely debated because the material alteration to external appearance test on its own is almost invariably relied upon to establish whether permission is required or not.

A large chalk figure has been cut into the previously unspoiled side of a downland valley. The figure is 60 m in width and it has been reported that 20 tons of crushed chalk has been used in its construction. The local planning authority takes the view that planning permission is not required. As the figure dominates the surrounding area, local conservation organizations are concerned about its impact and the precedent factor. Would you advise as to whether the figure is an operational development for which planning permission is required.

In the terms you describe I would not have thought that there could be much doubt that engineering operations have taken place.  While I cannot find an exact case precedent, activities such as soil removal and turf cutting have been held to be engineering operations. The fact that material has been imported and deposited only adds to the case that what has occurred is development requiring permission.

It is proposed to bring green waste onto a farm and form a large heap on deep clamp. The heap would be turned using farm machinery and once composed used to spread over the farmland as a soil conditioner. A definition of "waste" seems critical to any decision as to whether this activity is development or permitted development, and I would be interested to have your comments?

Section 55 of the Town and Country Planning Act 1990 states that the use of land for agriculture is not development, but also that the deposit of refuse or waste material on land involves a material change of use. Part 6 of the General Permitted Development Order 1995, referring to agricultural permitted development rights, does not allow the bringing of waste onto a farm. As you say, there is no definition of waste to be found in the Act or the Order, and decision makers have been forced to fall back on other legislation for meaning, such as the Environmental Protection Act 1990 or the Waste Management Licensing Regulations 1994. The thrust of both of these is that waste is to be defined from the point of view of the disposer or discarder. By that token if the green waste is the unwanted by-product of another activity such as land clearance then it may be reasonably viewed as waste, but if taken as part of a "crop" it would not. For instance a forester or coppicer could well find separate markets for the wood obtained and for the fleshier parts of trees for composting.  Therefore, if "green waste" from the latter source is brought onto a farm for purposes reasonably necessary for the purposes or agriculture within that unit, I feel that not only would it be Part 6 permitted development, but no development would be involved at all.

It is, of course, quite ridiculous that enquiry needs to be made about the origin of a pile of green waste at a farm, in order to determine whether or not permission would be required for it.

Response

I believe green waste is listed as "waste" in the European Waste Catalogue of  the Commission Decision 94/3/EC pursuant to article 1 of Council Directive  75/442/EEC on waste. Although I am not aware of any examples of the weight these definitions are given in respect of the GPDO, they have been incorporated into UK legislation. I would be extremely interested to hear if anyone has had any experience of this. With regard to the importation to farmland of shredded green waste prior to the composting period I would take the view that planning permission is probably required. Of course this depends on "when waste is not waste" and this could be open to interpretation especially as composting times seem to vary from site to site. It should also be borne in mind that the operations, depending on size and final resting place of the compost, could be subject to Waste Licensing Regulations. Some sites in my county council's area are so licensed and were done so following the granting of planning permission. However, these are complex matters on which lawyers fail to agree, and it would be of interest to hear of the views of others.

What is the situation regarding the need for planning permission for the replacement of houseboats. If a houseboat is replaced by a larger one, does this constitute development?

The position is similar to that of the siting of caravans, which because of their characteristics of mobility are considered to constitute a material change of use of land. The courts have held that "land" may include land covered by water. However, if a houseboat is moored or attached to the bank in such a way as to suggest permanency it may be that operational development will have taken place. As to the question of replacement by a larger boat, it is unlikely that a material change of use will be considered to have occurred, especially if the area of water occupied is not significantly greater. You may find it useful to refer to section (24.8) in Development Control Practice where there is specific commentary on the subject of houseboats.

My authority is dealing with a case where it considers that unauthorised development has taken place. The site is a first floor flat in a mixed use building which is arranged around an internal courtyard with offices on the ground floor and residential above. The ground and first floor have an attractive arched elevation and on the first floor there is a walkway behind the arches which originally acted as circulation when this level was in retail use in the past. The applicant has had windows installed by double glaziers so as to fill in the gap formed by the arch in front of his flat. Could the introduction of this glazing qualify as "building operations" under section 55(1A) of the Town and Country Planning Act 1992 and be development requiring permission?

This section of the Act includes as building operations "structural alterations of or additions to buildings" and "other operations normally undertaken by a person carrying on business as a builder". This infilling work is obviously not structural, nor is it clear how the insertion of glass into an existing opening could be an addition to a building. This leaves consideration of whether a double glazing installer could be described as a builder. This point was explored last year in these columns (Planning 16 November 2001 p19) with regard to replacement windows. Here, I ventured the opinion that such works would normally be considered building operations. Even in the slightly different circumstances of the present case I still tend to the view that the operations carried out by double glaziers could be interpreted as being work normally undertaken by a builder.

It is unfortunate that debate on this subject has been muddied by an erroneous context often applied to the law at section 55(2)(a) which states that there is no development if works do not materially affect the external appearance a building. Section 55(2)(a) is only a clause of exclusion to be applied to the main tests at section 1A, but decision makers over the years have tended to use it as a primary indicator, thus precluding consideration of the basic question of whether there are building operations at all.

Does a 10 foot high sculpture in the front garden of an eighteenth century town house constitute development requiring planning permission? The property is within a conservation area but is not listed. The work of art is prominent and visible from the street, and is in no way a permanent structure as it has been transferred from the owner's previous three dwellings. Enforcement action has been threatened by the local planning authority but I am of the opinion that the sculpture is permitted development.   Could you shed some light on this quandary?

The first test is whether this sculpture is operational development. As in all such determinations much depends on the facts of each individual case and considerations are normally those of permanence and degree of physical attachment. I am not aware of any planning cases involving statues or sculptures and the need for planning permission, although the question has come up in the different context of whether such works of art are sufficiently fixed to become protected by the listing of the premises within which they are sited. I would have thought that if this particular sculpture was firmly fixed to the ground, as it might need to be for security reasons, there could be a strong case for arguing that operational development had occurred.

If this is the case it will then be necessary to look at the possibility that the sculpture could be permitted development. Part 1 class E of the General Permitted Development Order 1995  (GPDO) would appear to be the provision most likely to be applicable, but this only covers buildings, enclosures and pools. Even if this sculpture were considered to be a "building" exclusions in the class relating to height maxima and front garden development would apply.

A new 2.5m high pergola has been erected in a garden, but a neighbour has complained and the local authority has stated that this is an unauthorised garden structure and have requested an application. I disagree and feel that no permission is required. What action do you think is necessary?

The plan that you submitted with your query showed that this pergola is located between the house and a flanking highway, and accordingly it could not be permitted development under Part 1 class E of the GPDO. Therefore the only way in which planning permission would not be required is if the structure falls completely outside of the definition of "development". However, cases would suggest that even though such a structure has an open roof and sides it is still a "building operation". However, if you are still in doubt your best tactic is to apply for a LDC.

My council has received a great deal of correspondence recently about polytunnels and their effect on the countryside. We wonder if you have any record of planning appeal decisions and also whether the matter has been considered in the environmental impact situation. Any advice that you can give would be welcome.

Polytunnels are a particularly problematic form of development for the planning system to have to deal with. Some forms of polytunnel with impermanent fixings may not be operational development requiring planning permission at all, and in other cases the permitted development provisions of Part 6 of the General Permitted Development Order 1995 apply. When proposals do require express planning permission local authorities may be faced with a case based on appropriateness, agricultural need and quite possibly precedent.  Looking at the appeal record it is clear that each case is looked at on its merits taking into account degree of visibility and landscape sensitivity, and as a result decisions are mixed. It does not seem that the extent of any polytunnel development which has gone to appeal has been sufficient to invoke the need for a formal environmental assessment. A full listing of relevant appeal decisions may be obtained from Compass.

Response

My interest is with the "Spanish" polytunnels predominantly used by farmers for the cultivation of soft fruit for sale to supermarkets. The fixings for this type of polytunnel comprise spikes screwed into the ground. These might be regarded by some as impermanent fixings in the ordinary sense of that adjective. However, an appeal decision from Chichester in 1999 makes it clear that this type of polytunnel farming does require specific planning permission and cannot be regarded as either operational development or the erection of structures covered by Parts 4 or 6 of the General Permitted Development Order 1995. Furthermore the inspector held that such development should not be permitted within an area of outstanding natural beauty.

The Demolition Direction of 1995 at paragraph 2(1)(d) refers to the fact that a dwellinghouse "or any building adjoining a dwellinghouse" is excluded from the general categories of building the demolition of which is not development. Do you know of any interpretation of the term "adjoining" in this context?

It would seem that in using the term "adjoining" the Direction intended to mean that there should be physical connection. This interpretation is supported by Circular 10/97 which states that "The demolition of buildings such as warehouses, factories, offices, churches, theatres and shops will not be subject to planning control unless they are attached to a dwellinghouse". The equivalent Scottish Circular 1/2001 makes it clear that the demolition of a building having a mutual wall with, or having a main wall adjoining the main wall of a dwellinghouse, is development.

My council has been asked to determine whether a drinks vending machine on the forecourt of a filling station constitutes development. The cabinet is about two metres high and fixed to the ground by bolts set in concrete. What is your opinion?

I think that this machine would be operational development as it is clearly intended to be a permanent feature. However, it is unlikely that a material change of use will occur as the vending of drinks may be seen as ancillary to a primary use which provides services for motorists. A close parallel was demonstrated in a 1960 case concerning a milk vending machine on the forecourt of a shop, as reported in Selected Planning Appeals.

Could you advise if a human burial is development or permitted development? In the latter circumstances what is the position regarding consultation with the Environment Agency (EA)?

Burials within the confines of a church or cemetery are ancillary to the primary use of the land and are not considered to be a material change of use. Any operational development involved is conventionally held to be de minimis. The use of other land for burials, such as a field or woodland, would normally constitute a material change of use, although probably not in cases of the low key "green burial" type where there are no physical manifestations and the land is subsequently to remain in agricultural or forestry use. It is possible that family burials could be permitted development within a garden area on the basis that this is "incidental to the enjoyment of the dwellinghouse", but I do not know of any cases to test this proposition. As you state, the EA has an interest in the use of land for human burials, and as set out in the General Development Procedure Order 1995 it is a statutory consultee regarding proposals to use land as a cemetery However in cases where no express planning permission is required local planning authorities would clearly not be not be in a position to formally consult. Nothwithstanding this I am sure that local authorities would consider it expedient to alert the EA to the possibility of human burials being undertaken if it became aware of them.

As a Parish Council we are proposing to install a toilet and septic tank at our allotments, primarily for the benefit of lady gardeners. The toilet will be formed from part of an existing concrete tool store. Is planning permission required, or any other form of consent?

Use of the building as an allotment holder’s toilet would be ancillary to the primary allotment use and no permission would be required. However, the tank itself would be development and require express planning permission unless this is deemed to be given by virtue of the General Permitted Development Order 1995. Looking at the Order it is possible that the septic tank is covered by class 12 "Development by Local Authorities" which includes small ancillary buildings, works or equipment on land belonging to or maintained by them required for the purpose of any function exercised by them on that land... Parish Councils are explicitly included in the definition of a local authority for the purpose of this class. However, I can't find any authority for a view that your proposed tank would be permitted development, and don't know the exact position with regard to permission under the Building Regulations  or consultation with the Environment Agency. Has any reader had experience of this subject?

I am keen to know whether or not a vehicular access onto a classified road requires planning permission, particularly as this planning authority has three enforcement notices pending. Reported cases do not seem to provide a definitive answer.

This problem is a perennial one, and as you have found there is no consistency in interpretations of the law. The legislation on the subject is section 55(1) of the Town and Country Planning Act 1990 which states that "engineering operations" are development requiring planning permission, supplemented by the definition at section 336 where it is stated that "engineering operations" include "the formation or laying out of the means of access to highways". However, most accesses onto non-classified roads are permitted development by reason of Part 2 Class B of the General Permitted Development Order 1995 (GPDO) if formed in conjunction with another permitted development.

The basic problem lies in reconciling the fact that "the formation or layout out of means of access to highways" may often only involve removal of an existing wall, fence or hedge and/or the laying down of a minimal amount of surfacing, none of which would normally require planning permission in themselves. Some decisions such as the South Gloucestershire appeal case described in Casebook 8 February 2002 p19, where all that had physically happened was that a wall had been demolished, have tended to the view that if the works undertaken do not otherwise constitute development then the access created is not development either. Other cases, some examples of which are detailed in Development Control Practice at 4.3136, have taken the stricter view that although the works involved may not individually require permission, the total act of forming an access is still development by virtue of section 336. My view is that the original intention of planning legislators must have been to bring the formation of all accesses to classified roads within planning control because of the obvious highway safety implications. Therefore the latter and more stringent interpretation seems the sensible one to adopt.

Rear garden soil has been removed in order that a hardstanding may be laid. A small one metre high retaining wall has been built where the hardstanding ends and the soil deposited behind to form a raised lawn. The total amount of material moved amounts to approximately 20 cu.m, but does this involve development?

The provision of a hardstanding at a dwellinghouse is permitted development by reason of part1 class F of the GPDO. However, in cases where such a hardstanding is to be built on sloping ground it may be argued that extensive cut and fill works involved go beyond that permitted by the GPDO. Cases have shown that a judgement on this matter is one of fact and degree. In Wycombe District Council v Secretary of State for the Environment and Trevor [1994] nearly all of the sloping front garden of a house had been excavated to form a 6.8m x 4.5m hardstanding backed by a 2m blockwork wall. At appeal the Secretary of State had concluded that there was one operation the sole purpose of which was to create the parking area. He felt that the removal of the necessary quantity of earth to achieve that aim took place as an integral part of that operation. The High Court ruled that this had been the wrong approach and the Secretary of State should have determined what was incidental to the provision of a hard surface. The Secretary of State was also found at fault in considering that the retaining walls were a means of enclosure permitted by part 2 class A of the GPDO. On remit the Secretary of State bowed to the court's semantic approach and averred that the works were so substantial in scale, even though the hardstanding could not have been carried out without them, that they went beyond anything which could reasonably be regarded as merely ancillary or incidental to the provision of a hard surface. A 1997 Bromley appeal case to quote the Wycombe decision is nearer in scale to your cited example. Here, soil had been cut away to a maximum of 1.2m and it was held that the cut and fill undertaken was incidental to the construction of a hard surface for the movement and parking of vehicles visiting the dwelling. A more recent case from Caradon determined in 2000 also referred to the Wycombe judgement which was interpreted as meaning that where there was single process involving two activities, the test was whether one was ancillary to the other. This case involved the removal of a frontage embankment to facilitate a hardstanding and an inspector concluded that the removal of the embankment was a demolition allowed by part 31 of the GPDO and the "modest" retaining walls involved fell within the terms of part 1 class F of the GPDO.

Field shelters are causing us some anxiety. There seems to be a trend in this national park for shelters to be placed in open countryside, which makes a significant impact on the landscape. Where the shelters are assembled on site we can request that planning permission is required and negotiate a re-siting in a less prominent position. However, the current trend is to pre-assemble the shelter prior to arriving on the site. The shelter is then lifted onto the land which avoids any engineering operation. The shelters do not have any floor, but the external walls and roof are fixed to a sledge. This means that the shelter is portable and can be moved from place to place so reducing the arguments relating to permanence.  What are your views on this topic?

A lawful development certificate appeal decision from Maidstone, which was determined at the end of 2000, saw a ruling that field shelters of precisely the type you describe are not operational development. Here an inspector noted the facts that the shelter in question could easily be moved with skids, and that it was not permanently fixed to the ground. A further interesting aspect of this case was the discussion which took place as to whether the use of agricultural land for horses was a material change of use. The inspector noted that if the primary use of the land was for "grazing" by any animal then the use remained within the definition of agriculture. However, he felt that if horses were being ‘kept’ on the land there could be a material change of use and used the court judgement Sykes v Secretary of State for the Environment [1980] to assert that if horses had significant amounts of food brought to them then this would not be "grazing". The inspector then went on to aver that the siting of the mobile shelter concerned did not imply horse "keeping" as opposed to grazing as it could be viewed as ancillary to a primary grazing use.

My view is that this inspector came to the only conclusion he could do in law on both the operational development and material change of use issues raised by the case. However, there is considerable need for reform in both respects. There is little doubt that the  conventional court led criteria which are applied to establish whether a structure is a chattel or a building are being exploited by portable building manufacturers to the detriment of the environment. It is also clear that the distinction between grazing and keeping posed by the Sykes case is an absurdity and has got to be rationalised before any more damage is done to the good name of planning control.

Is planning permission required for the installation of a rooflight in a single family dwellinghouse where the rooflight projects 5cm beyond the plane of a roof that fronts a highway?

The first consideration is whether this rooflight is development. Certainly it is a building operation but it is possible that it would be held not to materially affect the external appearance of the building. This would most likely be the case if the light is not readily visible from a public area, using the judgment Burroughs Day v Bristol City Council [1996].

Failing this the rooflight needs to be examined to see if it permitted development. The enlargement of a dwellinghouse consisting of an addition or alteration to its roof is allowed by part 1 class B of the General Permitted Development Order 1995 (GPDO).  Although such an addition is not permitted development if it extends beyond the plane of any existing roof slope which fronts any highway, a 2000 appeal decision from Brent indicated that slightly protruding rooflights were not an "enlargement" and therefore class B did not apply. The inspector therefore reasoned that class C "Any other alteration to the roof of a dwellinghouse" was applicable and as there was "no material alteration to the shape of the dwellinghouse", a rooflight was permitted by this class. Although the extent of the protrusion in the Brent case was not specified. I would have thought that 5cm that you quote would fall within the inspector’s description of "slightly protruding". The answer to your question is that planning permission is not required for the rooflight described.

A container was allowed on appeal because the inspector deemed it to be "permitted development", not because it was not development. Does this clarify that the placing of containers on land is, per se, development even when there is no change of use of the land, or plumbing/wiring-in, or any other associated engineering works?

Failure to make a proper distinction between "development" and "permitted development" often causes confusion. Unless "development" has occurred as defined in primary legislation, it cannot be termed "permitted development" by reason of secondary legislation. In respect of a container it is possible that its placement of land would not be development by reason of its impermanency or lack of attachment to the land. However, in practice, where a large object such a container is intended to be used as a temporary building it is common for a judgment to be made that development has occurred. That being the case, only then would one would look to the permitted development classes to ascertain whether a deemed permission is given.

I am trying to establish whether planning permission is required for the reclamation of an area of sea. I would also like to know if planning control extends to the siting of a new floating pontoon in a marina.

Development below low water mark does not normally fall within planning control unless, as in the case of many estuaries, harbours and tidal rivers, local authority boundaries actually embrace such waters. However, various other Government controls exist in offshore areas as set out in PPG20 Coastal Planning at para.1.9.  If the generality of planning control does apply to a particular area of water, there may well be operational development if a floating structure is permanently fixed to the river or sea bed as is almost certain to be the case in your pontoon example. It is also possible that a material change of use may be considered to have occurred from a navigable waterway to whatever use any floating structure is put to. The leading case in such matters is Thames Heliport plc v London Borough of Tower Hamlets [1996] where it was held that "land" may be land covered by water.

My council receives increasing numbers of requests for advice about what permission is needed for private burials on domestic or agricultural land. Research and correspondence with the ODPM suggests that this is not development although a burial ground is. Home burials are not controlled in any other way apart from the Environment Agency’s requirement that no pollution of groundwater should occur. What is your view, particularly the interface between a "private burial" and a "burial ground".

A new formal burial ground is almost certain to create a material change of use of the land in question. This may even be the case where "green burials" are proposed, although there may be no above ground evidence of the use after a short passage of time.  However note may be made of a Scottish appeal decision from 1992 where it was determined that the use of a farmer’s field for a limited number of private burials was not development where the land concerned was to remain undisturbed for grazing. The reporter in this case observed that the situation would be different if the graves were mechanically dug or an access track had to be provided.

This case would suggest that the de minimis principle could be applied to some operations of no planning significance. Such a judgment would be a matter of fact and degree having regard to factors such as the extent and nature of the burials, the characteristics of the site before and after the event, and any effect on neighbouring land uses.

Although there do not seem to have been any cases to test this proposition, I feel that family burials within the curtilage of a dwellinghouse would be "incidental to the enjoyment". This would be the case even if operational development were involved, provided that it fell within the GPDO Part 1 Class E qualifications.

My authority has recently required a planning application for replacement of windows in a flat on the basis that flats do not enjoy permitted development rights. It has been challenged in this view on the basis that replacement windows do not require planning permission and that the question of the applicability of permitted development rights is irrelevant. What is the correct approach?

When determining whether planning permission is required the first step to take is to ask whether development is involved as defined by section 55 of the 1990 Act. Replacement windows are normally held to fall within the definition of building operations but section 55(2)(a) states that operations are not development if they "do not materially affect the external appearance of buildings".

This involves making a judgment on a before and after basis, and it is of note that in nearly all such cases to come to appeal replacement windows have been found to "materially affect the external appearance of buildings", normally because traditional original frames have been substituted  by plastic versions. However, if windows are being replaced by near replicas then it will be difficult to argue the appearance of the building concerned is materially affected.

Only after having completed this exercise, and an authority is satisfied that development has taken place, is it relevant to consider the matter of the applicability of permitted development rights. But as you state there are no such rights if the building is in flats.

I have been in discussion with a planning authority over the use of a former stable block constructed in the late 1980's for the keeping of poultry. The site operated as a fishery until recently and the former stable block was used in association with that use. The fishery has since closed. The owner has erected various structures on site for keeping of poultry and the stable block has been altered by blocking up doors and attaching structures to it also for the keeping of poultry.

Both the structures and former stable block are within 400 m of residential properties in separate ownership and whose residents have complained about the activities for several years now. The planning authority accepts that the free standing structures require planning consent and that the land in question is not an agricultural unit or holding.  However, with regard to the use of the stable block, the view is that the keeping of poultry falls within the definition of agriculture and is not development as per sec.26(2)(e) of the Town & Country Planning (Scotland) Act 1997.

In your opinion has there been a breach of planning control?

The law in England and Wales is the same as that in Scotland. At sec. 55(2)(e) of the 1990 Act it is stated that the use of any land for the purposes of agriculture and the use of any building occupied with land so used, is not development. As the keeping of poultry falls squarely with the definition of agriculture it follows that use of the stable building for that purpose does not require planning permission so long as the land as a whole can be said to be  in agricultural use.

However, sec. 55 (sec. 26 in Scotland) only refers to the use of land and buildings and new physical works such as the alterations, extensions or the other structures that have been erected are development requiring planning permission. But such development may be exempt from express permission by reason of the rights given by part 6 of the GPDO, although it is difficult to be definitive without more information due to the many complexities in the Order. If, as you say the planning authority does not think that the holding is an agricultural unit, this would rule out any rights at all.

In summary, assuming that the council has control over the new works and sustainable reasons for refusing them planning permission, it is still possible for the poultry use to remain in being but limited to the extent that it can use the existing land and building.

A friend has asked whether planning permission is required for a freestanding pre-cast concrete fountain in his front garden. It is of a tiered design, stands about 50 inches high and is powered by an electric pump. The LPA claims that planning permission is required as it is connected to an electric supply. However, I can find no case law to confirm this.

The starting point must be to consider whether the fountain is a merely a chattel, or operational development, and if the latter whether it is permitted development by virtue of the GPDO. The basic tests for distinguishing between a chattel and a building operation were set out in Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co 1949. These are (a) whether its size was such that normally it would have to be built on site rather than brought to the site ready made; (b) whether the construction suggested some degree of permanence meaning it could only be removed by pulling down or taking to pieces and (c) whether the construction was physically attached to the ground.

If the fountain rests on the ground, it seems to me that it is in essence a chattel. However, the LPA presumably considers that its connection to an electricity supply gives it a reasonable degree of permanence, thereby making it operational development. Unfortunately, I have found no clear or consistent guidance on this, with Inspectors sometimes deciding that a mains connection is not pivotal, especially if it may be readily disconnected. Of course, if such a fountain is deemed to be operational development, then it is likely that in the majority of circumstances, but not these, that it would be a "building" that is permitted development under Class E Part 1 Schedule 2 of the GPDO.

Do railings above a rear extension of a dwellinghouse require planning permission? I believe that most authorities assess them against Class A of the GPDO. However, in cases where the property is not a dwellinghouse I think the approach is to argue that as railings would materially alter its appearance, they require permission, especially where intended to facilitate the use of a flat roof as a terrace. Is this correct?

Railings erected around flat roofs to form balconies or terraces are often considered to have a material effect on external appearance, although in many cases they will be permitted development by virtue of Classes B and C of Part 1, Schedule 2 of the GPDO. A roof terrace is not permitted by Class A as roof alterations are excluded, although it might be argued that the railings enclose a "volume" which should be counted against the available tolerance. However, in an appeal decided in 1987 it was held that balcony railings did not add any volume to a building while in another in 2000 it was found that the additional volume amounted only to the thickness of the railings themselves.

In Richmond-upon-Thames L.B. v SoS and J.Neale 1991 the High Court considered whether the erection of a parapet wall around the roof of a first floor extension to a suburban house in Surrey was permitted development. It was held that the wall fell to be considered against Class B of the GPDO and as the additional volume in the wall itself, which measured no more than 1 cu. m., did not exceed the relevant allowance, it did not require an express grant of planning permission. However, recommended changes to Part 1 of the GPDO in the recent review commissioned by the ODPM would specifically exclude roof terraces from the order.

It should be noted that in the case of R. (on the application of Cousins) v. London Borough of Camden 2002, the judge held that the erection of iron railings above a flat roof could not be regarded as an enlargement of a dwellinghouse consisting of an addition or alteration to its roof under Class B, Part 1, Schedule 2 of the GPDO 1995 but fell instead to be considered under Class C.

Response

Further to previous views concerning the erection of railings to a balcony being permitted development under either Class B or C of Part 1, Schedule 2 of the GPDO could it not be argued that railings form a means of enclosure under Class A of Part 2 and are therefore subject to the 1m and 2m rule? If the railings were to a ground level patio, Part 2 would apply. Therefore if the patio is raised by virtue of being on top of an extension or other structure, would not measurements from the existing ground level indicate that any railing would require permission?

There is no precedent that supports this proposition. Rather than being considered under Class A of Part 2, as the top of a ground floor extension or structure will be its roof and the railings would result in its alteration, this type of development falls within its own Class, depending on whether there would be a material alteration to the shape of the dwellinghouse. My advice cites a recent court case where it was held that such railings should be assessed under Class C of Part 1.

A property fronting onto a classified road has a hard-surfaced front garden and no front wall. Would works carried out by the Highway Authority to drop the kerb amount to development granted permission under Class B of Part 2 of the GPDO, or would they be considered de minimus?

A vehicular crossover carried out by a Highway Authority is not, in itself, development by virtue of sec. 55(2)(b) of the 1990 Act which exempts the carrying out of works by a local authority within the boundaries of a road. This was confirmed in a 1988 case in London, where an inspector stated that such work carried out by a local highway authority under sec 184(11) of the Highways Act 1980 following a request from the adjacent householder was not development.

Response

Further to the regarding the formation of a crossover where a house fronts onto a classified road and has a hardsurfaced front garden and no front wall, whilst your reply is factually correct in that the physical works to the footway by dropping the kerb do not constitute development, it is my view that the non-tangible right of access is what requires permission. In certain circumstances this is permitted development by virtue of Schedule 2, Part 2, Class B of the GPDO 1995, providing it is carried out in connection with another exercise of permitted development rights. This Class, however, specifically excludes classified roads, and therefore any vehicular access onto a classified road needs permission. KZ

Sec.336 of the 1990 Act states that "the formation or laying out of a means of access to highways" is an engineering operation and, where this is to a classified road, it is excluded from the permitted development rights provided by Class B Part 2 Schedule 2 of the GPDO. However, for permission to be required, the formation of the access must involve physical works not otherwise deemed to be permitted development, and in my view these cannot include what you describe as "non-tangible rights". In the case in point, these were the previous removal of the wall and the creation of a hardstanding, which in totality constituted an operation requiring planning permission, rather than the works carried out by the Highway Authority to drop the kerb. Recent appeal cases tend generally to support this view.

Are there any precedents that discuss what constitutes the difference between a building, and plant and machinery, and whether one needs permission but not the other?

This matter has arisen before. The principal case is Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co 1949. Here the court ruled that there were three basic tests for distinguishing between a chattel, such as plant and machinery, and a building operation. These are (a) whether its size was such that normally it would have to be built on site rather than brought to the site ready made; (b) whether the construction suggested some degree of permanence meaning it could only be removed by pulling down or taking to pieces and (c) whether the construction was physically attached to the ground. A number of subsequent court cases and appeal decisions have shed further light on this subject, which is covered in detail at 4.31 of Development Control Practice.

My local planning authority has told me that I need permission to terrace part of my garden but I cannot understand this and the authority has given no reasons. The works include excavation of the ground up to about 1.5m deep over a distance of 12m and building a number of retaining walls. There are no neighbours on either side of the garden for at least 300m. Can you please explain?

The starting point is to determine whether what you propose amounts to development for planning purposes. If so, it is then necessary to consider whether it is exempt from the need for express planning permission from your local authority because it is ‘permitted development’ under the GPDO 1995. Two types of operation are proposed here: the creation of terraced ground levels and the construction of associated retaining walls. In my view the proposed excavation works are an engineering operation and development which, because of its scale, could not be considered de minimis. The retaining walls are a building operation. Although in many circumstances the construction of walls is permitted development under Class A, Part 2, Schedule 2 of the GPDO, to avail of such rights there must be a function of enclosure. Both case law and appeal decisions have held that retaining walls do not qualify under this class and thus, irrespective of any conclusion on the excavation works, permission is required for the proposed development.

My authority has had a complaint about vertical canvas awnings on both sides of a retractable shop sunblind. These enclose a private forecourt of a greengrocers’ and block the view to adjoining units in the shopping parade. Although the awnings are usually put away at night, I have some sympathy with the complainant and feel they have a material effect on the appearance of the building.  Do you agree that these are development and do you know of any successful action against such awnings?

This question raises a popular misconception. The wording of sec.55(2)(a) of the 1990 Town and Country Planning Act operates solely in a negative way and provides that works for the maintenance, improvement or other alteration of a building are not development if there is no material effect on its external appearance. It does not say that those works are development if there is such a material effect.

While awnings and blinds have been held to be building operations and thus development, where used for advertisements planning permission may be deemed to be granted under sec 222 of the 1990 Act. But in themselves, hanging sheets on the sides of an existing awning would not be considered to be development and thus, even if they are held to have a considerable effect on the external appearance of a building, are beyond planning control.

Are you aware of any definitions or advice concerning the term 'de minimis', particularly in the context of whether something is or is not development?

Although not defined as such in planning law, the term is an abbreviation of the longer Latin phrase "de minimis non curat lex", which means that the law is not concerned with trivial matters. Whether an operation or change of use will be too minor to constitute development and hence neither require permission nor be classed as permitted development will be a question of fact and degree to be determined in each case, having regard to its scale, nature and effect. National guidance appears limited to PPG8, which explains that many of the smallest antenna systems such as most conventional television aerials and their mountings may be covered by the normal principle of de minimis, and to PPG4, which says that working from home will not normally result in a material change in use. It has therefore fallen to the courts and inspectors to clarify the application of the principle in other contexts. In the case of building operations, it has been held that the marking out of leisure plots with metal pegs and the installation of domestic barbecues do not comprise development. In addition, claims that a use is de minimis have been upheld where such use this has been only been occasional or slight in nature. These have included certain hobby activities, minor retail sales and vehicle storage. The matter is covered at 4.3111, 4.3212 and 4.5335 of Development Control Practice.

How much of an unlisted building in a conservation area can be demolished before conservation area consent (CAC) is required and does the fact that permission has been granted for a new basement make any difference, bearing in mind that while this could not be built without major demolition, a flank wall would still remain? Although it is intended to reconstruct the building exactly as it is at present, if the building "fell down" completely could the council insist on a different one being built?

Relevant guidance in PPG15, as amended by circular 14/97 and Appendix B of circular 01/01, refers to the judgement in Shimizu (United Kingdom) Ltd v. Westminster City Council [1997]. Here, the House of Lords held that works for the demolition of an unlisted building in a conservation area must also involve the total or substantial destruction of the building concerned. This means that many works involving the destruction of the fabric of part only of a building will not be works of demolition and will not require CAC. This is a matter of fact and degree to be determined in each case. However, comparable advice in PPG15 on listed buildings adds that major works which comprise or include acts of demolition falling short of the complete destruction of the building, such as façade retention schemes, may still constitute works for demolition depending on their extent. This might apply in your case.

The fact that permission has been granted for the basement does not override the need for CAC for any preceding demolition works, where consent is required, unless these works were explicitly required by condition of the permission. Were the building to fall down, the planning authority would be able, on application to it for the site’s redevelopment, to insist on a different replacement building if it felt that a replica of the existing building would fail to preserve or enhance the character or appearance of the conservation area.

I recall reading that, since internal works are not development, they do not require permission. But if enforcement action is taken against a use, the notice can require the removal of such works, for example where rooms have been formed by stud partitions to facilitate a house in multiple occupation, to prevent the use being taken up again. Colleagues have asked me to provide the relevant case law. Can you please help?

Alterations that affect "only the interior of the building" are not development under sec 55(2)(a) of the 1990 Act. However, as you say, internal works may be controlled where there is an unauthorised change of use and an enforcement notice may require their removal. The main authority for this is Murfitt v SOS & East Cambridgeshire DC [1980]. Here, the court held that, despite the four-year rule, a notice could legally require removal of a hardstanding associated with a haulage use, as it was "part and parcel of, and an integral part of, the use." A similar view was taken in Somak Travel Ltd v SOS. & Brent L.B. [1987], when it was held that a notice could validly require a staircase to be removed that enabled the unauthorised use of residential upper floors as offices. But in Hereford City Council v SoS & Davies [1993], the courts decided that there was no duty to require removal of internal works which were integral to an unauthorised change of use. Rather, this is a matter of discretion.

In your reply to a query you confirmed that internal works do not require permission. But if a householder wishes to convert an integral garage to additional living space through such alterations, would permission be required?

Unless there is a planning condition requiring the retention of the garage for its original purpose or withdrawing certain permitted development rights, permission is not needed for its conversion to ancillary living accommodation as this will not result in a material change of use. Associated conversion works, such as the removal of the garage door and its replacement by a window, are normally permitted development under Class A, Part 1, Schedule 2 of the GPDO.

A car repair business with a history of causing difficulties for local residents now wishes to install a spray-paint booth within its building. It has submitted an application for a Certificate of Lawfulness claiming that as the works would be internal no permission would be required. However, the booth requires an external exhaust flue that would project about 1m above the ridge of the roof of the building. Could it be argued that this flue would alter the external appearance of the building, so that the Council could exercise control over the development?

Although whether the flue is excluded from the need for permission by virtue of sec 55(2)(a) of the 1990 act clearly involves a subjective aesthetic judgement, for there to be a material effect on external appearance there should be a substantial or significant physical change. A strict reading of the law indicates that the material effect test should be applied only to the building concerned and not to its surroundings, and it makes no difference whether the building’s appearance would be improved. In Burroughs Day v Bristol City Council [1996] it was held that the degree of visibility was also an important factor. Thus any change to external appearance must be visible from a number of normal vantage points. Cases illustrating the application of the test are detailed at 4.3151 of Development Control Practice, including one from Peterborough in 1997 where an inspector held that air extraction ducts at repair garage spray booths would have no material effect (DCS No. 031-132-535).

Opinion is divided at my authority on whether security shutters fitted behind a shop window need permission but seems to turn on whether these "materially affect the external appearance of the building", thus amounting to development. What is your view?

In Burroughs Day v Bristol City Council [1996] it was held that when applying such a test, it was the "external appearance" of a building which could be affected and not just the "exterior". It therefore follows that something that can be seen through a window could have a material effect on external appearance. However, in an appeal from Newport in 1999 it was thought that an "internal" shutter behind a shop window did not materially affect appearance (DCS No. 036-086-573). Here an inspector felt that whether the shutter was development in the first place and, if it was, whether it had a material effect on external appearance were "arguable issues" that were not clear cut. But as he found that works had no material effect, he concluded that they were not development.

I am dealing with an application for a certificate of lawfulness for small mobile shed which I am satisfied is an article and not a structure. But logically, I cannot say that it is "lawful development" as I do not think that it is development. Therefore, I must refuse the application. But in doing so, I will disappoint the applicant who only wants to know whether he is liable to enforcement and is not interested in such subtle distinctions. Is it possible to grant a certificate of lawfulness for something that is not development?

Sec 191 (2) of the 1990 act states that existing uses and operations are lawful at any time if, among other things, no enforcement action may then be taken in respect of them, "because they did not involve development". While there is no similar provision under sec 192, which deals with applications for a proposed use or development, it is clear that the approach is the same. Annex 8 to Circular 10/97, which sets out related guidance, lists nine categories of development or "other activity" on land that is lawful for planning purposes, including that which is not within the definition of "development". The Annex also advises that in making their decision on an application under section 192, the planning authority’s consideration should include whether the proposal would involve "development" requiring an application for planning permission. Appeal cases support this approach and demonstrate that inspectors have frequently granted certificates in the circumstances you describe.

I am appealing an authority’s decision to refuse an application for a Certificate of Lawfulness for an area of land that was originally used as a car park for employees of a village mill.  In its response to my submissions, the planning authority has used the terms "sui generis" and "subsisting use". Are these expressions defined?

Sui generis is not defined in planning legislation but is a legal term which means "of its own kind". Where it is used in a planning context, it indicates that a use is outside the scope of any of the classes set out in the Town and Country Planning (Use Classes) Order 1987. It will therefore not qualify for the rights given to uses falling within those classes. Nor is "subsisting use" defined. However, this is simply another way of saying that a use continues to exist.

A nature conservation charity has been advised that changing agricultural land to a "nature reserve" is a change of use.  However, this term can encompass a range of different circumstances.  At one end, it simply involves changes in general farming or forestry management practices to encourage wildlife through raising water levels in ditches, removing conifers to create heath land and so forth. At the other end is the establishment and management of specific areas for wildlife with visitor facilities such as surfaced paths, hides, café and a shop.  My instinct is that changes in the way that land is managed do not need permission, regardless of ownership. However, at what point would permission be required for a nature reserve alone, excluding related visitor facilities?

The National Parks and Access to the Countryside Act 1949 states that a "nature reserve" means land managed for the purpose "(a) of providing, under suitable conditions and control, special opportunities for the study of, and research into, matters relating to the fauna and flora of Great Britain and the physical conditions in which they live, and for the study of geological and physiographical features of special interest in the area, or (b) of preserving flora, fauna or geological or physiographical features of special interest in the area". Planning guidance on nature conservation is given in PPG9.

Where any nature reserve involves engineering or building operations, the need for permission should be clear cut. But decisions on whether there is a material change of use from agriculture to a nature reserve, which is a sui generis use, will always be a matter of fact and degree. Relevant factors could include the physical extent of the land and whether it is to be taken completely out of food production and positively managed as a nature reserve, the nature of such management measures and the potential for attracting significant numbers of visitors. However, mere changes to farming practices will not constitute development.

As lighting is not development, my understanding is that in itself it does not require permission. Control is therefore limited to the physical apparatus to which the light source is fixed. However, while such control is often exercised to protect residential amenity, there seems to be very little guidance to assist a judgement on the visual effects of illumination within conservation areas. Apart from mitigating such effects by planning condition, are you aware of any relevant case law or guidance?

There is little guidance currently available. However PPS23, issued in November and applicable to England only, explains that an annex on planning and light pollution will be prepared for public consultation in due course. In the meantime, the statement acknowledges that the need to limit and where possible reduce the adverse impact of light pollution, for example on local amenity, rural tranquillity and nature conservation is a material consideration in the preparation of development plan documents and consideration of planning applications. The ODPM website carries a better practice guide on lighting in the countryside prepared by consultants in 1997. Guidance notes on reducing light pollution are also available from the Institution of Lighting Engineers.

You are correct in thinking that control is generally restricted to instances where consent is required for the associated physical apparatus. However, in certain circumstances, such as those in cases from North Wales (DCS No: 071-035-459) and Cheshire (DCS No: 047-257-796), external lighting may be considered an advertisement and thus capable of control. In addition, if external lighting from an installation affixed to a listed building affects its character, listed building consent is required even where those works are not development. The extent to which external lighting has been held to materially affect the external appearance of buildings and constitute development for which permission is required is discussed at 4.3151 of Development Control Practice.

If an applicant can prove that a building has been used continuously for a period of 10 years for class B2 general industrial purposes, despite there being no permission for such use, and the floor area does not exceed 235 sq m, would a Certificate of Lawfulness confer permitted development rights to enable a change of use to class B1 business use without the need for express permission?

Article 3(5) of the Town and Country Planning (General Permitted Development) Order 1995 excludes building operations and uses from enjoying permitted development rights if they are unlawful. It follows that once a certificate of lawfulness has been granted, the provisions of the Order apply and thus such rights can be claimed. In this case a change of use to class B1 would be permitted development under Class B, Part 3, Schedule 2 of the Order.

Response

Section 191 (2) of the 1990 act states that uses and operations are lawful at any time if "no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason)". Section 191 (1), which relates to LDCs, indicates that the provision enables a person to "confirm" whether uses are lawful or not. In essence, therefore, a successful application for an LDC is a way of obtaining reassurance that a use or operation is lawful; it does not it itself convey lawfulness. Thus if the use is beyond enforcement then it is lawful and therefore has permitted development rights. In the absence of the landowner submitting an application for an LDC to test the situation, the planning authority would need to consider the lawfulness of the development when assessing the expediency of enforcement action.

Other readers have made similar points. Paragraph 16 of Annex 1 to Circular 17/92 explains that there is no compulsion to apply for an LDC. However, where there may be doubt over the lawfulness of a development, in many situations it will clearly be prudent to do so.

My client owns an old corrugated iron building of 160 sq m, which was previously used as a hangar for small privately owned aeroplanes flying from an adjacent grassed airstrip. When flying ceased some years ago, the building continued to be used for the parking, storage, repair and maintenance of aircraft and aircraft parts, together with dry storage for agricultural and horticultural items. A lawful development certificate (LDC) was granted for this use, which in my view falls within Class B8. My client now wishes to apply for an LDC confirming that the proposed use of the building for Class B1 purposes would be lawful under the rights provided by Class B(a), Part 3, Schedule 2 of the General Permitted Development Order 1995. However, the planning authority claims that it cannot issue a certificate in respect of a use class, only a specific use that may be within a particular use class. This seems unreasonable. My client cannot specify a particular use until he has a prospective tenant but he cannot attract a tenant until he can offer a building where a class B1 use would be lawful. Is the authority right?

Paragraph 8.28 to Circular 10/97 explains that in the case of an application for a LDC under section 192 of the Town and Country Planning Act 1990 for a proposed use or operation, any certificate granted shall specify the land to which it relates, describe the use or operations in question, where appropriate, identifying a use by reference to the relevant "use class", and give the reason why carrying out the proposal would be lawful. In view of this advice, I can see no reason why a certificate cannot granted for a Class B1 use. I am reinforced in my view by an appeal decision from Devon where an LDC was issued for "any purpose within Class B8" as requested. The planning authority had previously granted a certificate for a precise use with no reference to the Use Classes Order, despite the specified activities clearly falling within Class B8 (DCS No: 048-764-933).

Permission was granted to convert a building to hotel use.  Although the works have been carried out in accordance with the approved plans, lights have been set into the steps approaching the entrance. Opinion is divided at my authority over whether this is development or could be construed as an advertisement. What is your advice?

For the lighting to be considered an advertisement, it would be necessary to show that its main purpose is as a device to draw attention to the building, rather than merely to illuminate the steps as an aid to personal safety and convenience. Whether development is involved depends on whether the physical works of installing the lights has had a material effect on the building’s external appearance and the extent to which this is affected when the lights are switched on. Similar issues were considered in Kensington and Chelsea Royal London Borough Council v C.G. Hotels [1980], where the court ruled that floodlights had no material effect on an hotel and that while its appearance was affected when illuminated, that was not an operation amounting to development. Nevertheless, where lighting has had an extensive external presence, requiring the use of festoons or harnesses, inspectors have held that development has occurred, as detailed at 4.3151 of Development Control Practice. But in this case, if the lights are set into the steps then, as a matter of fact and degree, they may well not be considered to have a material effect and be development.

I am instigating enforcement action against the parking of a large former heavy goods vehicle and boxed trailer in a front garden. A second vehicle and trailer are parked on the adjoining road. Both vehicles have been converted to living accommodation and are claimed to be ancillary to the residential use because they are used by the family in association with quad bike racing. As well as seeking the removal of the vehicle in the garden, is it reasonable to take action against the second vehicle? Both are very large and cause traffic congestion.

While the circumstances here are unclear, I have assumed that the vehicles are not lived in while parked at the property but merely stored between outings. Sec. 55(2)(d) of the Town and Country Planning Act 1990 confers the right to use any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such. This extends to incidental uses that are not development, such as the storage of a touring caravan, which is essentially what the vehicles have now become. However, whether such a use is incidental is a question of fact and degree. Following Wallington v Secretary of State for Wales [1991], the assessment must include an element of "objective reasonableness". Simply because an activity is a hobby does not make it "incidental". In this case, the storage use appears to go beyond that which could reasonably be considered a normal incidental of domestic life. In view of the harm caused, enforcement action would be justified. However, action under planning powers against the second vehicle would not be prudent as this does not appear to involve development. You should discuss this with the highway authority to see whether the obstruction caused is sufficient to warrant proceedings under highways legislation.

A householder wishes to rebuild a rundown garage measuring 64m3 on its existing site to the same dimensions and external appearance. It forms part of the original dwellinghouse built before 1948. An extension of around 140m3 was added in 1996. Does the rebuilding of the garage count as development within the meaning of Sec. 55 of the Town and Country Planning Act 1990 or would it be exempt from planning control?.

Under Sec. 55(1A) of the Act, "development" covers building operations including rebuilding. But by virtue of Sec. 55(2)(a) (ii), works for the maintenance, improvement or other alteration of any building that would not materially affect its external appearance are excepted. While eligibility for this exemption will be a question of fact and degree, the courts have held that it does not confer unlimited rights to rebuild dilapidated buildings. The rebuilding of the garage will therefore involve development. As the original dwelling has already been extended and it would appear that the permitted development allowances have been exceeded, express permission will be required.

On behalf of a building society, I have consulted nine local authorities to ascertain whether the fitting of external security bars to the rear windows of high street premises requires consent. I have received mixed opinions, which turn on whether or not the bars would materially affect the external appearance of the building. What is your view?

Applying the principles established in Burroughs Day v Bristol City Council [1996], the test of whether the window bars comprise development is the extent to which they would materially affect the external appearance of the building as a whole, when seen from a number of normal vantage points. This can only be assessed case by case. But if the alterations are to windows at the rear of premises that are not generally visible, they will probably not require permission.

My council is dealing with complaints about two different types of temporary structure. The first are purpose-built stables on metal sleighs around 7m by 4m that are only moveable by being towed. They have no floor and the ground is usually covered with matting and straw. The second type are loading bay shelters and covered tunnels for moving goods between warehouses and vehicles. They generally comprise a metal framework covered in a canvas-type material and can be moved around on small wheels and concertinaed when not in use. Are these structures classed as temporary buildings?

Class A, Part 4, Schedule 2 of the General Permitted Development Order (GPDO) 1995 permits certain structures required only temporarily in connection with constructing a development that already has express permission. Typically, these would include builders' site huts and plant, so this class does not apply in the circumstances you describe. With both types of structure, it is first necessary to consider whether operational development is involved, having regard to the usual tests of size, permanence and physical attachment to the ground. In a decision from Nottinghamshire in 2004 (DCS No. 37315698), an inspector determined that horse shelters on skids were not development. The same conclusion was reached in cases from Dorset in 2001 (DCS No.44764057) and Kent in 2000 (DCS No: 30323967). However, a material change of use of land on which shelters rest can occur where this does not have the necessary permission for keeping horses. Where loading bay shelters and tunnels are development, they should be assessed against Part 8 of the Order. This permits the extension or alteration of an industrial building or warehouse, including certain free-standing structures. I am unaware of any decision where they have been considered, but I think it unlikely that mobile retractable tunnels will constitute development.

Would the installation of an air conditioning unit on a flat-roofed garage at a dwelling be development requiring permission?

The unit would only amount to development for the purposes of planning control if it is fixed to the roof and has a material effect on the garage's external appearance. This might not be the case if the unit is, for example, concealed by a parapet wall. If it simply rests on the roof it would be a "chattel" and would not constitute development. In a decision from London in 2000 (DCS No: 52025377), an inspector held that 17 air conditioning units at an apartment block did not involve development because they did not materially affect the building's external appearance. If the unit constitutes development and the garage is attached to the dwelling, it could be argued that it should be treated as a roof enlargement under Class B, Part 1, Schedule 2 of the General Permitted Development Order 1995. If it satisfies the conditions listed under that class it would not require express permission. Moreover, if the garage is detached the unit may be permitted development under the provisions of Class E.

If the installation of a satellite dish on a house is development, albeit allowed under the General Permitted Development Order (GPDO) 1995, would a wind turbine not exceeding one metre in diameter on the gable wall of a house also be development? Also, am I correct in thinking that express permission would not be required for a turbine fixed to a house roof provided the installation does not project above the main ridge?

I can find no case that has considered whether a small domestic wind turbine constitutes development or requires permission. However, a turbine fixed to the dwelling will involve a building operation. Whether this is development for the purposes of planning control turns on whether it would materially affect the external appearance of the building, in accordance with Sec. 55(2) of the Town and Country Planning Act 1990. Applying the test established in Burroughs Day v Bristol City Council [1996], there may be circumstances where it would be considered not to have a material effect. Where that is the case, an installation on the wall of a house should be assessed against the provisions of Class A, Part 1, Schedule 2 of the GPDO. Provided it meets the conditions under that class, express permission would not be required. Where the installation is fixed to the roof it should be judged against the limitations of Class B. Express permission would not be required if the turbine does not project above the highest part of the roof and satisfies the remaining conditions in that class. The Government recently announced (Planning, 30 June, p2) that it is to relax development restrictions on domestic wind turbines.

Can planning control over the provision of mezzanine floors be avoided if operations or enabling works to implement such space began before 10 May 2006 but have not been completed? Is there any guidance on the extent of the works that would need to have been undertaken to constitute an "operation"?

Since 10 May, the effect of new Article 2A of the General Development Procedure Order 1995 and Sec. 55(2A) of the Town and Country Planning Act 1990 is that "operations" that increase the gross floor space of a building used for selling goods other than hot food by more than 200m2 constitutes development and requires permission. Although guidance on mezzanines is given in DCLG Circular 01/2006, this does not deal with floor space under construction. However, common sense suggests that where there is tangible physical evidence of internal alterations already in place to provide a mezzanine before 10 May, regardless of whether they have been completed, the mezzanine should be considered to have escaped the need for permission. Readers' views are invited.

Flats do not enjoy any permitted development rights. Does this mean that permission is required to replace windows of the same size? If the external finishes are altered, such as from wood to UPVC, would that result in a material change in the appearance of the property and should this be a more important consideration in a conservation area? If so, should the same limitations apply to houses within a conservation area?

Applying the tests in Burroughs Day v Bristol City Council [1996], the starting point is to consider whether the replacement of the windows would materially affect the building’s external appearance as a whole when seen from a number of vantage points and comprise development in accordance with Sec. 55(2) of the Town and Country Planning Act 1990. This is a matter of judgement. In a decision from Bristol in 1987, an inspector opined that the insertion of windows rarely involves development if it merely involves different materials (DCS No: 56176942). But where replacement windows would have a material effect on appearance, permission is required regardless of whether the building is in a conservation area. Such a location would obviously have a bearing on the windows’ acceptability. Windows of houses in conservation areas may be replaced as permitted development under Class A, Part 1, Schedule 2 of the General Permitted Development Order 1995 unless these rights have been removed by an Article 4 direction. The matter is discussed in 4.3151.

A client wishes to place several mobile poultry shelters within a field.  These measure 14m by 5.5m, and are approximately 3m in height.  They are used to provide shelter for 670 free range chickens.  My local authority (in Scotland) is insisting that planning permission is required,   The walls are timber, and the roof is constructed from profile sheeting.  The shelters are not in any way fixed to the ground, as they are fitted with wheels and skids, and are moved around the field every 7 weeks.  We would be grateful for confirmation, or otherwise, that the local authority is correct in requiring a planning application. RL.

In determining whether any structure is a building operation for the purpose of planning control the normal considerations are size, permanence and physical attachment to the ground. In England specific advice relating specifically to agricultural buildings was given in former PPG7, although not repeated in PPS7. Annex D of PPG7 stated that, while pig arks and moveable poultry shelters may not be buildings, this may not be the case if structures are placed on foundations secured to the ground and have facilities such as an integral water supply. The advice concludes, however, that each case must be determined on its merits. An illuminating appeal decision from 2002 is (DCS No. 027-358-122). Here, enforcement action was taken against two 18m x 8m poultry arks on skids so as to be moveable by tractor. An inspector noted that the arks were built from a kit of parts forming a galvanised steel framework onto which cladding and roof panels were fixed. The structures took 4.5 days to be erected and fitted out and weighed between 7-9 tons. It was concluded that, although the arks were not fixed to the land except by gravity, the delivery of parts to the site, and their erection, amounted to an operational development. The fact that the arks were substantial buildings resting securely on their own weight, and not moved often, was also cited by the inspector. A later case concerned even larger arks with their own solar panels and wind turbines (DCS No, 100-045-016). Here an inspector noted that, although the arks had a mains water supply, there was no significant attachment between them and the ground.  However, this was not a case where a ready made structure was brought onto the site. It amounted to the construction on site of a building requiring substantial time and labour. In addition the fact that the buildings would only be moved once a year suggested a degree of permanence.

With regard to the type of ark which you describe there may be more of a case for arguing that it is not a building operation, but clearly much depends on a matrix of considerations. GH.

Could you please confirm whether the keeping and breeding of Llamas constitutes an agricultural use as defines by section 336 of the Town and Country Planning Act 1990. My authority has received a prior notification application for a new ‘agricultural’ building at a farm which no longer undertakes any conventional farming activity. Llamas are kept for trekking and for sale as pets. They are not kept for meat and, unlike Alpacas, the fleeces cannot be marketed commercially. My authority considers this to be a recreation/tourism use and full planning permission would be required for any buildings. AH.

Although rather dated, the definition of agriculture at section 336 refers to the keeping and breeding of livestock and then goes onto state that this includes any creature kept for the production of food, wool etc. It does not say that creatures kept for any other purpose, such as the Llamas you describe, are excluded. However, practice has not supported this interpretation of the words in section 336. As is well known, the courts have determined that the use of land for keeping leisure horses is not an agricultural activity, and thus buildings to house them are not for an agricultural purpose, as required if they are to enjoy the rights given by Part 6 of the Town and Country Planning (General Permitted Development) Order 1995. Although horses do not provide an exact parallel, and given the inadequacies of the present legal definition of agriculture, I feel that the buildings proposed require full planning permission.  Whether, as it stands and without these new buildings, the Llama trekking/breeding use constitutes a material change of use from any previous agricultural use, is another matter. Of course, the enterprise is a classic agricultural diversification favoured by policy, which might be difficult to reject unless there were overriding planning objections. GH.

Response

The notification arrangements for agricultural and forestry buildings do not contain any provision for the planning authority to consider whether a proposed building is or is not permitted development. The call-in procedure only allows a council to consider the siting, design and external appearance of the building, not the principle of development.  Despite the approach taken by some authorities, concerns that a building is not permitted development cannot be resolved by calling in the details. I feel that this situation can best be resolved by a letter advising that the building is outside the notification system and needs planning permission. Any correspondence about calling in details only serves to confuse the applicant or give them the impression that their building is permitted development after all. CL.

I am enquiring about the planning status of large mobile chicken arks. I know of two previous decisions where an inspector decided that the construction of the arks on site amounted to a building operation and was development. In each case an inspector went on to grant permission. My query is, if it is only the construction of the arks that requires planning permission, what is the position if they are then towed to another parcel of land altogether?  Can they then be treated as moveable structures not requiring planning permission as there would be no change of use of the land and no building operation taking place on the land? RW.

You are probably referring to the two cases I highlighted in response to an earlier Forum query in Planning 14 September 2007, p29. Your question raises an interesting point, which only serves to underline the lamentable lack of precision in planning law relating to the control of ‘moveable’ structures. In these types of case, decisions that a building operation has occurred tend to be based on a combination of two considerations. Firstly, that the business of assembling the required components on site is, in itself, so complex and time consuming as to amount to a building operation. Secondly, that the resulting structure is of such a size and scale that it cannot be readily moved, thus making a permanent material change to the character of the land upon which it is situated. If, as you pose, intact arks are in fact subsequently relocated by dragging them to another site, the first criterion is clearly no longer relevant. The second is somewhat undermined by the reality that the unit has in fact been moved, and on the evidence of this may well be moved again. This draws me towards the conclusion that if, say, an enforcement action was directed against an ark in a substantially different position from that where it was initially constructed and sited, it would be difficult to sustain at appeal. Of course, no matter where the chicken ark is moved to there will be no material change of use of the land because agriculture is not development by reason of section 55(2)(e) of the Town and Country Planning Act 1990. If the alternative site is ‘comprised in an agricultural unit’ it is possible that agricultural permitted development rights could come into play, but that is another story! GH.

Permission was granted on appeal for substantial extensions to a detached property in a conservation area. My client now wishes to create a basement room under a raised rear patio, accessed via a staircase from the permitted extension. The completed development would look no different from the approved scheme save for some windows in the patio retaining wall. Can the basement be built as permitted development? SM.

Section 55(2) of the Town and Country Planning Act 1990 says that works for the alteration of a building by providing additional space in it underground constitute development for the purposes of planning control. But when considering whether basement accommodation is allowed under class A, part 1, schedule 2 of the General Permitted Development Order 1995, a difficulty arises with how the additional volume should be assessed. Article 1 of the Order explains that the cubic content should be measured externally. Usual practice appears to be to discount any space underground. In your case, it could be argued that the space created behind the retaining wall to the patio and above natural ground level should be taken into account. Assuming that the authorised extensions have not yet been built, the basement would be permitted development if the requirements of class A are satisfied and the works are carried out first. But if the new works and permitted extensions are constructed in a single operation, the approach adopted in R ex parte Watts v Secretary of State for the Environment, Transport and the Regions [2002] suggests that it would not be possible to rely on the permission granted under class A. Neither would the works be permitted development if the extensions have already been built. PM.

A condition of a permission for a replacement house removes permitted development rights for any building, shed, greenhouse or other structure. The local authority argues that since a swimming pool is a structure, it is caught by the condition. What is your view? MP.

The difficulties in assessing swimming pools, particularly in relation to certain developments within residential curtilages under class E, part 1, schedule 2 of the General Permitted Development Order 1995, were noted in the review of permitted development rights carried out by consultants for the government in 2003. Applying the definition of Article 1 of the Order and section 336 of the Town and Country Planning Act 1990, the view is usually taken that a below-ground swimming pool is a "building", since this term includes "any structure or erection". As such, it would be subject to the limitations under class E, although in the circumstances you describe express permission would obviously be required. Others say that the heading to class E, which refers to "building or enclosure", with "swimming or other pool" listed separately after the comma, is a clear statement that a pool is not to be regarded as a building or enclosure. I am not aware of any relevant court judgments or recent appeals. Disputes will continue until the Order's wording is clarified. PM.

Response

This matter was debated during a recent appeal from Hampshire (DCS Number OT100-047-012). Having considered opposing arguments from counsel that were identical to those outlined in my reply, an inspector concluded that a pool structure can be regarded as a building for the purposes of the Order and that permission would be required for a pool with a cubic capacity of more than 10m3. The inspector's approach is in line with general practice. PM.

A 1960s council estate was built with backland garages, which still existed in 1989. However, by the mid 1990s only the concrete bases of the garages remained. Does the new owner need permission to rebuild garages on the site?

In accordance with section 55(1A) of the Town and Country Planning Act 1990, rebuilding the garages will constitute development. If, as I assume, the garages fall outside any residential curtilage, then the owner cannot rely on any permission granted by the General Permitted Development Order 1995. In such cases, my view is that express permission will be required.

A 2m high mesh metal fence sits on concrete feet next to a footway and protects a car sales area. The fence looks unsightly, but as it is not fixed to the ground does it require planning permission? LA.

The starting point is to consider whether the fence constitutes a building operation or is merely a "chattel" that is placed on the land, applying the tests established in Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co [1949]. These tests relate to the structure's size, permanence and physical attachment to the ground. If the fence is deemed to constitute development, the need for express permission should be assessed against the provisions of class A, part 2, schedule 2 of the General Permitted Development Order 1995. This excludes fences that are more than 1m high where they are adjacent to a highway carrying vehicular traffic. If the fence is considered not to be development, it could be argued that the use of the land on which it rests is ancillary to the primary use of the site for the display and sale of cars. Since a fence of the type you describe is usually readily demountable, it may well not need permission. PM.

Our council has been receiving complaints about three small skips that have appeared on land. They are filled with rubble and sited at an entrance point. The owner has said that he has resorted to using skips because previous fencing had been ripped out. We consider it is not a planning matter as there is no a material change of use or operational development; the skips being easily removable. Is there something we are missing or do you think we are right in our assumption? SF

In some cases where removable structures such as containers have been placed on land with a view to their permanent or long-term retention, it has been held that they have been operational development. Sections 4.3112 and 22.112 of Development Control Practice give more details. If the skips are going to be on site for a long period, i.e. if the site is not shortly to be redeveloped, it might be possible to argue their placing constitute operational development, but you describe them as being "small", so such an argument might be difficult to justify. JH.

The question of 'what is development' has been raised recently in the department with two enforcement enquiries. The first related to a shed which had been placed, not fixed to the ground, in front of a dwelling - it was considered that this was development and the shed was removed. In the second case a wooden playhouse, on stilts but not fixed to the ground, was considered to be a chattel not development. The playhouse was located in a rear garden but within 20m of a highway (this was before 1 October). In appearance and size there was very little difference between the shed and the playhouse. I wonder if any other authority has come across an anomaly like this and could advise how they deal with such matters. JJ.

Section 4.31 of "Development Control Practice" looks in some detail at such issues. The lead court case is Cardiff Rating Authority v Guest Keen Baldwins Iron and Steel Co 1949. The main issues to be considered in deciding if something is operational development are size, permanence and attachment to the ground. Each case has to be decided on its own merits. Inevitably the issues frequently are not straightforward. Without knowing the full circumstances of these cases it is impossible to comment in much detail, but, for example, if the shed would have to be broken up to remove it whereas the playhouse did not, that might be sufficient to justify treating these cases differently. JH.

An electricity supplier wants to remove a high voltage line. The Electricity Act 1989 does not cover removal of apparatus.  Whilst Part 17 of the General Permitted Development Order would allow them to replace the apparatus, which implicitly requires removal, it does not explicitly allow it. The provisions related to demolition do not seem to apply to apparatus. Perhaps dismantling is not development, although it would seem to be an engineering operation. The works will require a newt licence from Natural England.  Natural England asks for evidence that planning permission exists or is not required.  Logically removing redundant apparatus is the responsible course of action, but it would seem to require an application. What are your views? DB.

I agree removing a power line seems to be an engineering operation, so planning permission would be required. You need to discuss this with the appropriate local authority and see whether they agree this requires planning permission and then make a planning application or lawful development certificate application as appropriate. JH.

Would fixing a large canvas marquee to a tarmac surface by inserting numerous, approximately 0.75m steel pegs, mean that the marquee is no longer considered a ‘moveable structure’ under Part 4 Class B of the General Permitted Development Order 1995 (GPDO)? CW.

Assuming the marquee was removed at the end of the 14 or 28 day period as appropriate, the only issue left to be considered is whether any "eyeholes" left in the tarmac were sufficiently small to be de minimis as this is the only element of the marquee permanently remaining. I suspect they would be considered de minimis. JH.

My Authority is having difficulty assessing whether permission is required for aircon units on dwellings. There are not any provisions within the General Permitted Development Order 1995 as amended (GPDO) and we have therefore been assessing the ‘material affect’ of the works/units. In one case we have previously advised 3 units would not require planning permission but now a fourth has been installed. Advice on how to assess whether permission is required would be appreciated, as well as if you consider there to be provisions within the GPDO, with particular reference to article 1(5) land? PH.

As you recognise your first assessment should be whether the proposal represents development, i.e. does it materially alter the external appearance of the building? If it does, you would then have to assess whether the proposal was permitted development - classes A or B of part 1 of schedule 2 of the GPDO will normally be relevant. In the case where a fourth unit has been added, you can only assess these issues in relation to that fourth unit. Except for volume calculation purposes for class B, no account should be taken of the previous units. The only differences for Article 1(5) land would be in relation to the variations in permitted development rights, e.g. Class B rights would not apply. JH.

In 6 March’s "Casebook" an appeal was reported (DCP no 100-062- 122) where the inspector quashed an enforcement notice, holding that a timber dwelling was capable of being moved and was therefore a caravan. This seems a significant loophole in terms of the General Permitted Development Order’s provisions regarding outbuildings. As I read it, any structure which could theoretically be lifted from the site, whatever the expense, does not constitute operational development. Therefore residents could place such structures within their gardens without needing permission. Could you clarify this? JE.

Cardiff Rating Authority v Guest Keen Baldwins Iron and Steel Co 1949 determined the main issues to be considered in deciding if something is operational development are size, permanence and attachment to the ground. There have been instances when placing structures such as containers on the ground when the intention has been their permanent retention have been held to be operational development. In the case you refer to, however, there was a lawful development certificate for a caravan and the inspector considered that, the structure was movable so complied with the definition of a caravan in the Caravan Sites Act 1968. This decision does not suggest structures which can be lifted from a site are automatically not development, so does not set the precedent you suggest.  JH. 

A tennis club was refused permission for floodlighting in 1988. It has now attached high level floodlights to the existing chainlink fence surrounding the courts. The council says that if the work constitutes development it is as an alteration to the fence and permitted by virtue of Part 2 Class A of the General Permitted Development Order 1995. Alternatively, as portable lamps not integral to the fence, they would constitute chattels and are not development. Either way, planning enforcement cannot act against them. The floodlights do not look portable and are permanently wired in. The site is surrounded by housing. Neighbours' amenity is affected by the lighting and the longer hours of play. Is the council right in stating action under planning legislation is not possible? RA.

The floodlights cannot be considered to be part of the fence as they were added much later and anyway do not relate to its function as a fence. Furthermore, from your description, it sounds as though they are not intended to be temporary, so cannot be considered chattels. Having said that, unless they are very large, they would be de minimis and therefore not development. Provided the authority’s conclusions on this issue are reasonable, it would not be possible to challenge its position. The case of Kensington & Chelsea L.B. v C.G. Hotels and Another 1980 deals with a number of points relevant to this situation.  An alternative possibility would be asking the authority to consider whether the lights were a nuisance under section 103 of the Clean Neighbourhoods and Environment Act 2005. JH.

My client wishes to demolish a building last used as short-stay homeless hostel. Am I right that permission will be needed to demolish it? NT.

No unless it adjoins a dwellinghouse, is listed buildings or in a conservation area. Prior notification of demolition under class 31 of schedule 2 of the General Permitted Development Order 1995 is only required for dwellinghouses and buildings adjoining dwellinghouses. JH.

I completed a development 12 years ago without complying with a condition that a landscaping scheme must be submitted and approved by the council before the commencement of development. Is the development now immune from enforcement action? MS.

The case of Bedford Borough Council v the Secretary of State for Communities and Local Government and Alexander Stanislaw [2008] has clarified the law on conditions precedent. If the landscaping scheme is worded along the lines, "No building/development shall take place until a landscaping scheme has been submitted to and approved by the local planning authority", then it would be a condition precedent in legal terms. If such a condition has been breached, the whole development would be in breach of planning control and, not only would the landscaping condition be unenforceable but any other conditions would also be. This is because the whole development was unlawful so the permission has not been implemented. The development has only become lawful as 4 or 10 years have elapsed. On the other hand, if the condition begins with a phrase such as "Prior to building/development commencing", then the failure to comply with that condition does not make the whole development unlawful and any other conditions imposed would still be effective. The difference between the two scenarios is that for the first one to apply there must be a prohibition on building/development before something happens. To me and, I suspect, many other readers this does seem a somewhat semantic interpretation, but this is what the Bedford case has indicated is the law. JH.

The owner of a flat-roofed office building wants to replace the existing roof with a green roof. It will not look very different from the ground until the plants on the roof begin to grow. Will he require planning permission? FD

This will, of course, depend on whether the external appearance of the building is materially altered. In the case Burroughs Day v Bristol City Council [1996] it was held that in assessing whether the external appearance of a building is materially altered this should be done from surrounding public vantage points (not from adjoining taller buildings). Thus, unless the roof itself is visible from nearby higher land, etc, replacing the roof would not materially alter the external appearance. Whilst replacing the roof is a building operation, the subsequent growing of the plants is clearly not. Thus, it is likely that what is proposed would not require planning permission. JH.

Response

I noticed in the 17th July issue the answer to FD refers to the Burroughs Day v Bristol City Council (1996) holding that viewing from public vantage points is the test of whether a building’s external appearance is being materially altered and on page 19 in an appeal reported in Casebook (DCS no: 100-063-192) an inspector says that the Burroughs Day does not distinguish between private and public vantage points. RS.

Further Response

Thank you for pointing this out. I was not careful enough in choosing my words in answering this question. It would have been better if I had used a phrase such as "normal vantage points", the term quoted from the judgement by the inspector in the appeal cited, JH.  

I am having increasing problems where overzealous enforcement officers take action against clients for what I would consider to be gardening, such as stripping soil to renew turf, constructing small retaining walls and terracing, etc. The council suggests that such works are engineering operations requiring planning permission. I would appreciate your thoughts or any direction towards an authority on this point. KP.

I would be interested to hear readers’ views and experiences on this issue. Development is defined to include building, engineering, mining or other operations. The General Permitted Development Order 1995, as amended, allows hardstanding within dwelling curtilages (which suggests works of a similar nature such as forming flowerbeds constitutes development) and there are also, of course, class E rights. Nevertheless, it would seem unreasonable for planning permission to be required when someone wanted to to plant seeds as that involved digging a hole or even construct a flowerbed and such work would be classed as de minimis. Clearly more major work could require planning permission. Such major work may not necessarily be engineering operations, but if not, would be "other operations". It is really a matter of fact and degree whether such works require planning permission.

A further issue in considering such proposals is whether they result in harm and what degree of harm should warrant action. Bearing in mind an Englishman’s home is his castle, I would suggest authorities should be wary of enforcing against such work unless it causes significant problems such as terracing overlooking neighbours or very inappropriate materials in a sensitive location such as a conservation area. JH.

Clients often ask if they can add a porch to a barn conversion but planning authorities normally refuse them as they would spoil the building’s simple agricultural appearance.  I have had the idea of having a structure on wheels that can be brought up to the front door and wheeled away again as the fancy takes. I consider this would not require planning permission, even if permitted development rights were removed by condition, nor listed building consent, it the building is listed, as it would not be a fixed structure. What do you think? CB.

Normally when barn conversion permissions are granted permitted development rights for alterations and extensions are removed. If this has not been done, a porch could, of course, usually be built as permitted development. Regarding your mobile porch idea applying the principles of Cardiff Rating Authority v Guest Keen Baldwins Iron and Steel Co 1949 and Barvis Ltd v SOS 1971, if the mobile porch were kept in position permanently, this would almost certainly be considered to be development, but if it was only wheeled up in inclement weather then it would not be. Another possibility to consider would be an internal porch as this would not require planning permission, though it the building were listed, listed building consent would almost certainly be required. JH.

My client owns farmland across which lies a canal last used in the 19th century and abandoned in the 1920s. Ownership has reverted to adjoining landowners. Some of it has been filled in; the majority is overgrown, with the towpath inaccessible; bridges and locks lie derelict. We have been approached by a canal conservation charity which wishes to restore it through donations and lottery funding. Reinstatement is favoured in the development plan. What is the canal’s planning status? Is the charity correct in stating no approval is required to repair the infrastructure (including substantive clearing and rebuild), or to make use of the canal once restored? In my view this constitutes engineering operations and a change of use, as it no longer has the status of a canal. CN.

I agree that this would require planning permission. Certainly, excavating infilled sections would constitute engineering operations and it is highly likely that other renovation works would be operational development. Furthermore, the infilling of sections, the derelict condition and the reversion of the land to adjoining owners indicate the canal use right would have been abandoned. Having said that, if the development plan supports the canal’s reinstatement it seems unlikely permission for its reopening would be refused. JH.

Is permission required to demolish the chimneys of a house in a conservation area? VF.

Conservation consent would not, of course, be required for partial demolition applying the principles of Shimizu (UK) Ltd v Westminster City Council 1997 which indicated only a building’s substantial or total demolition would require this. As the definition of "building" in article 1 of the General Permitted Development Order 1995 does not include part of a building in class A of part 31 of the Order, it could be argued that any partial demolition of a house requires planning permission (see Journal of Planning and Environmental Law 1994 p777 and 1995 p370 and DC Forum for 6 June 2008). Depending on the nature of the works and the position of the chimney, chimney demolition might fall within class G of part 1 of the schedule to the October 2008 amendment to the General Permitted Development Order. I regret I cannot give a more definitive answer. As chimneys can be quite an important feature contributing to the character of a conservation area, it is unfortunate that the law is not clearer. JH.

A housing trust has erected several digital aerial masts on their flats/apartments, which have led to complaints. Their height is between 3.6 and 4.8 metres and they protrude above the roofline by up to 3 metres.  The installers argue that with the switch to digital television these masts should be classed as conventional television aerials and subsequently de minimis. They have installed thousands of them without planning permission being required and without any enforcement issues. Do you consider the masts require planning permission? What have other authorities’ approaches been to similar digital masts being erected? DJ.

From the information and photos you have supplied I consider these masts materially alter the external appearance of the buildings. They are considerably larger than conventional television aerials which are normally taken to be de minimis, so that comparison is not appropriate. In assessing whether to take enforcement action, however, you would have to weigh the harm to the appearance of the area against the benefit they provide in providing television services. Given that satellite dishes which have a similar visual impact and function are frequently permitted development, I would suggest such action is unlikely to be expedient except in more sensitive locations such as conservation areas. JH

My authority has recently received queries regarding erecting structures sheds and greenhouses on a proposed allotment site. We have replied that planning permission is not required for the use which was formerly agricultural, but permanent structures are not, permitted development under either parts 6 or 12 of the General Permitted Development Order 1995. This advice has been contested and the allotment society has cited the Crowborough case. Although structures exist on other allotment sites, this seems to be a question which has not been asked before. Could you advise? SD.

The "Crowborough" case is Crowborough Parish Council v Secretary of State for the Environment and Wealden District Council where it was held that the use of land as an allotment was an agricultural use, though as section 4.32 of Development Control Practice indicates, this is not necessarily always the case. This case does not relate to the erection of buildings which would require planning permission normally. The only way the need for planning permission could be avoided would be for your authority to make a special development order.

On the general issue of erecting sheds and similar structures on allotments, in most instances erecting them on allotments is not controversial, and it might be argued these should be made permitted development subject to suitable size limitations. If the General Permitted Development Order were to be extended to allow these, however, there would be some sites where they would not be acceptable such as green belt ones. This is presumably why the government has never introduced such a provision. JH.

We have received a prior notification for the erection of an agricultural building which requires the demolition of an abandoned dwelling. The dwelling is substantially intact with all walls and roof in place and exceeds 200 cubic metres. The building is not listed or in a conservation area.  Section 1.1(e) of the Town and Country Planning (Demolition which is not Development)(Scotland) Direction 2001 indicates demolishing buildings up to 50 cubic metres does not constitute development. Would it follow that demolishing a building greater than 50 cubic metres would constitute development? Section 1.1(a) states the demolition of any building other than a dwellinghouse etc is not development but does not have any volume limitations. We are considering the residential status of the building, i.e. is it an abandoned dwelling. We are also considering whether the building’s size is such that demolition would constitute development so we should seek an application for this. We have a number of interpretations of the Direction, so your opinion would be appreciated. MT.

Demolition in Scotland is controlled under fairly similar provisions to those applying in England. These are quite complicated, but are explained in section 4.3114 of Development Control Practice. In both countries development is now defined to include demolition. Scottish circular 1/2001 includes the direction referred to in the question indicating what buildings can be demolished without needing planning permission – there is an equivalent direction for England attached to circular 10/95. The General Permitted Development) (Scotland) Amendment (No.3) Order 1994 introduced a new class of permitted development, class 70, which mirrors the provisions of part 31 of schedule 2 of the General Permitted Development Order 1995 including setting out a prior notification procedure for demolishing dwellings and buildings adjoining dwellings.

Both the English and Scottish General Permitted Development Orders indicate demolition does not allow under their respective classes demolition if "a building has been rendered unsafe or uninhabitable by the action or inaction of any person having an interest in the land on which the building stands; and it is practicable to secure safety or health by works of repair or works for affording temporary support". If the building meets these criteria, and from your description it may do, then planning permission would be required for its demolition. If it does not meet them, then it would be a dwelling to which the prior notification procedure would apply. The council cannot prevent demolition under this procedure, but can control how it is carried out and how the site is restored. Whether the demolition is to be subject of planning permission or prior notification, the relevant procedure will need to be followed before the work is carried out. I would not consider the prior notification to erect the agricultural building would authorise the work. JH.

A builder has replaced a shop’s dilapidated roller shutters with new ones of similar materials but has utilised the existing guide rails and projecting brackets.  The only material difference between the old and the new shutters is that the new ones are an improvement over the rusty dilapidated shutters they have replaced.  Do the replacements need permission or should they be more properly considered as alterations which do not materially alter the external appearance of the building? KN.

I have not been able to find an appeal where a similar issue to the one you raise has been considered. Section 13.411 of Development Control Practice does, however, give some examples of appeals where the issue whether alterations to roller shutters or installing new ones require planning permission. Obviously, as you indicate, the test to be applied in this instance in determining whether planning permission is required is the one coming from section 55 of the Town and Country Planning Act 1990, whether the works materially alter the external appearance of the building. From the description you have given me, I would not consider the appearance to have been materially altered so planning permission would not be required. JH.

A resident has put a poster depicting a blood-stained tiger on their garage door. The image is very realistic and is frightening children. A neighbour has queried whether it requires planning permission. As the property is a dwellinghouse, the image seems to be permitted development. It does not appear to be an advertisement as it is not "employed wholly or partly for the purposes of, advertisement, announcement or direction". There are a number of websites selling such products. It seems likely use garage poster use could increase. We would be interested to know your views on these and whether you consider they can be controlled them through planning or other legislation. JA.

I would agree this is not an advertisement. It could, however, be argued that putting up the poster is development as an "other operation" like painting on the basis it is intended to be relatively permanent, though I consider this argument weak. If it is considered to be development it would not be permitted development under class A of part 1 of the General Permitted Development Order 1995 (as amended) as it does not use similar materials to the rest of the dwelling. I am not aware of any other legislation that could be used to control this poster. JH.

Response

As per JH’s response, I am not aware of any planning legislation that might be used.  However, I wonder if Section 5(1) of the Public Order Act 1986 might be used as children are being caused harassment, alarm or distress. Rather than a planning matter, this approach is likely to require a properly briefed police officer to visit the resident. MH.

A condition on an outline permission to demolish a club building and erect four detached dwellings requires approval of details of various levels "before the development hereby permitted is commenced". The client asks whether "development" here includes demolition. Can he not directly proceed to demolish (subject to bat survey)? Questioned on this point the authority’s position is that demolishing a building (which is a material operation) on a site with planning permission for redevelopment constitutes a commencement of development in terms of preserving the planning permission. Therefore the applicant must ensure that the condition requiring the approval of details is satisfied prior to demolition taking place. Your views please. GK.

Applying the principles derived from Bedford Borough Council v the Secretary of State for Communities and Local Government and Murzyn [2008], this condition is not a condition precedent in terms of breaching it meaning the permission had not been validly commenced. This is because the wording of the condition is not of the form "no development shall commence until". Thus, as, as you point out, demolition is a "material operation" the carrying out of which would constitute a commencement of a permission under s56 of the Town and Country Planning Act 1990 (as amended by the Planning and Compensation Act 1991), it would seem likely that demolishing the club would keep the permission "alive". JH.

A developer proposes to put a bridge across an atrium in a shopping mall and to use the floorspace that is thereby created for extensions to neighbouring shops. He says that this work does not require planning permission and quotes Church Commissioners v Secretary of State for the Environment (1995) in support of his view. Our reading is that in this case the judge actually concludes more or less the opposite where changes to occupancy boundaries are concerned and that planning permission is required. Can any of your readers throw more light on this, please? IM.

There are two elements to this proposal, the building operations and a possible change of use. Building operations that "affect only the interior of the building" are not development under the provisions of section 55(2)(a) of the Town and Country Planning Act 1990 as the Church Commissioners case that you refer to confirms. The provisions in article 3 of the Development Management Procedure Order 2010 would not be relevant here as the "building used for the retail sale of goods" would be considered as the individual retail unit, not the whole shopping centre. There is, however, a change of use from atrium/walkway to retail and that would require planning permission. An analogous situation is where a dwelling curtilage is extended to include highway verge – it is generally recognized that this would constitute a material change of use. John Harrison.


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