What is defined as a building? A simple question, but the answer will change depending on the context in which you ask it. A recent appeal against a planning decision highlights that, at least within planning legislation, the definition of ‘building’ can be very wide.
Mr Cooper received an enforcement notice on 14th January 2019 from Newark and Sherwood District Council in relation to a small (potentially moveable) shed. Mr Cooper appealed, but the Planning Inspectorate dismissed the appeal on 30th September.
Planning permission is required for the carrying out on land of any development (section 57(1), Town and Country Planning Act 1990 (TCPA 1990)).Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land” (section 55(1), TCPA 1990).
This leads to the question posed at the beginning; what is a building? Section 336 TCPA 1990 defines it as any ‘structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building’. Case law has further expounded this vague definition by forming a test based on the size of the structure, its degree of permanence, and the degree of physical attachment to the land.
Previous case law has stated that structures which would not ordinarily be described as buildings could be included within this definition (the particular case was related to a marquee). Even polytunnels have been successfully argued to be defined as ‘buildings’ for the purposes of planning permission due to their permanent nature and, in that specific case, extensive area. There is therefore some flexibility for local authorities to decide what is, and what is not, a building and if it subsequently requires planning permission.
Unfortunately for Mr Cooper, his argument that the shed was a movable, pre-fabricated structure without foundations did not persuade the Planning Inspectorate that, in fact, it was not a ‘building’. The Inspectorate noted that the shed was suitably attached to the ground, there was no intention to move it and the size was enough to warrant an enforcement notice. The shed was therefore a ‘building’; a form of development which in turn requires planning permission.
This case highlights the fact that small, ‘temporary’ structures may need planning permission and they need to be removed if an enforcement notice is issued. As seen above, local authorities can have a very strict interpretation of planning legislation. Issues typically arise when a landowner wishes to sell their land and a purchaser’s enquiries reveal a discrepancy.
Landowners, particularly agricultural landowners, need to be aware of the risks of placing structures (like polytunnels and small sheds) on their land without first seeking advice from a planning consultant and, possibly, approval from the local authority.
For further advice or information, please contact a member of Woodfines’ Commercial Property team at any of our offices.