Casebook: Appeal cases - Agricultural development - Polytunnels held to breach planning control

Enforcement action directed against two growing tunnels at a garden centre in the Norfolk Coast area of outstanding natural beauty has been upheld after an inspector found that they were building operations with no permitted development rights.

The inspector accepted that polytunnels are often regarded as ancillary to agricultural or horticultural use because of their transitory nature.

He found it necessary to establish whether the tunnels involved a building operation within the meaning of development under section 55(1) of the Town and Country Planning Act 1990. If they were, he reasoned, they would not be exempt under section 55(2)(e), which permits the use of buildings for horticultural purposes, because this applies to existing rather than new buildings.

The inspector referred to Barvis Ltd v Secretary of State for the Environment (1971), Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co Ltd (1949) and Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (2000). These cases established three primary factors in assessing what constitutes a "building": size, permanence and physical attachment to the land.

The inspector found that the polytunnels were substantial structures, being nearly 40m long, more than 8m wide and around 3m high. He noted that they had been built on the site and, with 24 tubular arches each, were not insignificant. He also found that the provision of anchor points set in concrete suggested a degree of physical attachment beyond that of temporary protection from sun, wind and rabbits.

He accepted that the area's light sandy soils made normal pegged guys insecure. While other local farmers had resorted to substantial stakes to restrain their temporary polytunnels, he considered that these were not as physically attached to the land as the anchored arches on the appeal tunnels. He ruled that the tunnels represented building operations for which no permitted development rights were available under class B, part 6, schedule 2 of the General Permitted Development Order 1995.

DCS No: 35190040; Inspector: John Martin; Written representations.

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