Publication
US/Ukraine minerals deal: Digging into the detail
The United States and Ukraine governments have announced the signature of an agreement of a minerals deal for Ukraine.
Buildings and structures required ‘temporarily’ and permitted development
First published in LexisNexis
United Kingdom | Publication | January 2023
Is there any case law or guidance which helps with the interpretation of buildings and structures required 'temporarily' in connection with operations being carried out on land, for the purposes of the permitted development right in Class A of Part 4 of Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015, SI 2015/596?
Content
1. Introduction
| 1.1. | Class A of Part 4 Schedule 2 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (GDPO 2015) SI 2015/596 (Class A) affords temporary planning permission via permitted development rights for “The provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land”. |
| 1.2. | Exemptions to permitted development under Class A are set out at Paragraph A.1. Development is not permitted where the structure is erected, albeit temporarily, in connection to operations which either are mining operations, or where there is an unfulfilled requirement for planning permission for those operations. |
| 1.3. | Class A development is subject to conditions which are set out at Paragraph A.2. These conditions are that when the main operations have been carried out, the building, structure, works, plant or machinery is removed; and any adjoining land on which development permitted by Class A has been carried out is reinstated to its condition before that development was carried out. |
| 1.4. | There is a lack of case-law on the interpretation of Class A of the GDPO 2015. However, the wording is identical to that of the Town and Country Planning (General Permitted Development) Order 1995 (GDPO 1995). It follows that guidance may be gleaned from case-law interpreting the GDPO 1995. |
2. Operational development
| 2.1. | This right relates to operational development; this was confirmed by Sullivan J in R. (Hall Hunter Partnership) v First Secretary of State [2006] EWHC 3842 (Admin); [2007] 2 P. & C.R. 5, who held that “operations” was a convenient shorthand for “operational development”. The right is commonly utilised on development sites for the provision of welfare facilities, construction compounds, plant and materials storage, temporary surfacing and haul routes, amongst other works, all of which are required in order to develop a scheme that benefits from planning permission. |
3. A “common sense approach”
| 3.1. | In R. (on the application of Wilsdon) v First Secretary of State [2006] EWHC 2980 it was held that a substantial building of permanent construction could not be considered to be required temporarily, whether or not it was required for a particular purpose and whether or not there was a professed intention to remove the building later. Sullivan J explained that a “common sense approach” would be adopted to the interpretation of “a building required temporarily”, which would be taken to have the same meaning as a “temporary building”. |
| 3.2. | In this context, the size, the means of construction and the length of time taken to construct the building were considered to be relevant factors. Even if the purpose for which the building was required was temporary, this was not relevant taking into account the permanence of the building itself. It will therefore be a matter of fact and degree to be determined in the context of each case whether a structure can genuinely be described as “required temporarily”. The larger and more permanent a structure is, the less likely it is that it will be “required temporarily.” |
4. A lack of permanence
| 4.1. | In Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No.2) [2000] 2 PLR 102, a marquee, which was erected in the grounds of a listed building for eight months each year, was held to be sufficiently permanent so as to fall outside the permitted development in Class A of Part 4 Schedule 2. |
| 4.2. | The Inspector had applied a test of permanence, to determine whether the structure considered was not “so transient or ephemeral that it lacks permanence”. In these circumstances, the marquee remained on site for approximately eight months a year and was resurrected annually and so the structure itself was seen to have, amongst other things, a “significant degree of physical attachment to the land” and was not considered to be temporary for the purposes of the GDPO 1995. |
5. “Required”
| 5.1. | The temporary building must be required for the main building operation or development. |
| 5.2. | The meaning of “required” was discussed in Brown v Hayes and Harlington (1963) 62 LGR 66 to mean “incidental” to the main building operation. On this basis, Class A does not afford permitted development rights for any change of use for a purpose that is discrete to that of the main operation or development, such as storage or car-parking. |
| 5.3. | In the Wilsdon case [2006] EWHC 2980, Sullivan J observed at paragraph 23 that “it is rightly accepted that the appellant had to establish that the building was reasonably required, not merely that he considered it desirable and/or convenient”. |
6. Conclusion
| 6.1. | Whether any particular operational development will be considered permanent or required temporarily will therefore be a matter of fact and degree which will turn on the circumstances of each case. However, the size, permanence, means of construction, materials used, duration of construction, and perhaps even the cost and ease of construction and de-construction will all be relevant factors to be taken into account, as will considerations as to whether the operation in reasonably required or incidental to the principal development being constructed. What is considered standard industry practice, or good construction management practice, will no doubt also have a bearing on whether a particular operation falls within the permitted development right. |
Useful Resources
- Town and Country Planning Act 1990
- Town and Country Planning (General Permitted Development) (England) Order 2015
- Butterworths Planning Law Service, Section 4, “Temporary Buildings and Uses” at paragraph 799
- R (on the application of Wilsdon) v First Secretary of State and another [2006] EWHC 2980
- Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No 2) [2000] 2 PLR 102
- Brown v Hayes and Harlington (1963) 62 LGR 66
Head of Planning; Partner
Email
sarah.fitzpatrick@nortonrosefulbright.com
Recent publications
Subscribe and stay up to date with the latest legal news, information and events . . .