Rogue enforcement notices

Another planning law blog (yes, this one isn’t the only planning law blog around) recently posed a question regarding the legal effect of an enforcement notice which was out of time under the 4-year rule or the 10-year rule (whichever applies in the case in question) but was not appealed. The same question could legitimately be posed in respect of an enforcement notice which alleges a breach of development control which has never occurred. This is an issue on which I previously commented in this blog (see below) and the answer, unfortunately, is that if the enforcement notice comes into effect, either because it has not been appealed or because an attempted appeal was ineffective or was dismissed, the preclusive provisions of Section 285 prevent the validity of the notice being questioned in any other proceedings. This can lead to injustice, as I have previously pointed out.

The only exception to this rule would be an enforcement notice which was in fact a nullity. However, this means a notice which is not merely defective but one which is so bad as not to be an enforcement notice at all. In that case, there would still be scope for defending a prosecution against non-compliance.

The piece I wrote previously gave two examples of the injustice which Section 285 can cause in practice. Ideally, the legislation should be amended to enable some of the ‘technical’ defences to an enforcement notice (under Grounds (b), (c) or (d) for instance, and possibly even Ground (e)) to be raised as a defence to a prosecution for non-compliance if they had not previously been raised on appeal. Alternatively, there should perhaps still be scope for applying for a Lawful Development Certificate (currently precluded by Section 191(2)(b)). [Of course, if these points had been raised on appeal and had been dismissed, then res judicata or ‘issue estoppel’ would apply.] However, I do appreciate the desirability of preventing unmeritorious attempts to gain time before unlawful development has to be remedied, and so any amendment would have to be carefully drafted to avoid creating a loophole for the unscrupulous.

This is what I wrote earlier:

An injustice

[First published on 27 February 2008]

Consider the following facts. The front wall of a domestic curtilage was accidentally damaged as a result of a traffic collision, and the householder decided to remove the remains rather than rebuilding it. He then decided to lay out a hardstanding in his front garden and parked his car on it. The house fronts onto a classified road.

The LPA served an Enforcement Notice. I have not seen that notice but it presumably alleged the unauthorised formation of a means of access onto the highway. The householder was not professionally advised, and it appears that rather than appealing the notice, he attempted to argue about it with the LPA.

In the absence of an appeal, the EN duly came into effect. The householder was subsequently prosecuted in the magistrates’ court for non-compliance with the enforcement notice, and not being professionally represented or advised, he was fined. The LPA is now threatening further action.

That enforcement notice should never have been served, and if appealed it would very probably have been quashed under Ground (c). The removal of the wall did not require consent (and was in any event accidental). The formation of the hardstanding was clearly Permitted Development under Part 1, Class F. No other building or engineering works were carried out.

What about the formation of an access to the highway? It is a classified road, and so could not be Permitted Development under Part 2, Class B. (Note in passing that if the road had not been classified, the formation of the hardstanding might have constituted the necessary qualifying permitted development required by Part 2, Class B.) The essential point, however, is that what happened did not constitute the formation of a new access to the highway in any event. Thus there was no breach of planning control in this case.

The mere removal of a wall, fence, hedge or other boundary feature between a property and the adjoining highway does not constitute the formation of an access to the highway as such, even though it may facilitate access to the highway. This is a proposition which has certainly been accepted on appeal, and I was under the impression that there was also judicial authority to this effect, but I have been unable to find the case I had in mind.

The injustice in this case is two-fold. First the LPA has done the householder an injustice by serving an enforcement notice in the first place. More seriously, in the absence of an appeal under Section 174, the preclusive provisions of Section 285 effectively prevent anyone going behind an enforcement notice once it has come into effect. Thus the unrepresented layman without resort to professional advice has no defence to a prosecution for non-compliance, even where the notice, while falling short of being a complete nullity, is incontestably bad.

This is not the first time I have come across this situation. I recall a case in London in which I was asked to advise where an enforcement notice had alleged a change of use of the flat roof of a house by the formation of a roof garden. This was a nonsense, as it was all part of one and the same planning unit within Use Class C3. There had been no building operations, as there was an existing parapet on the roof. Nevertheless, the householder had failed to appeal the notice, which had consequently come into effect, and so there was no defence to a prosecution for non-compliance with the requirements of the enforcement notice, nor could the position subsequently be corrected.

Perhaps there should be some provision for a retrospective LDC application to be made to overturn ‘bad’ enforcement notices in such circumstances. It might be difficult to frame it in a way that would prevent its being exploited simply as a means of staving off justified action by an LPA in pursuance of a soundly-based enforcement notice, but there are enough cases of injustice being caused by the current rules to make the effort worthwhile.

© MARTIN H GOODALL

Mr Justice Lindblom

I was pleased to see the news on Friday that Keith Lindblom QC has been appointed to the High Court bench. He has a well-deserved reputation as a first-class planning lawyer, and so will be a valuable addition to the High Court.

It is not yet clear whether he will be assigned to the QBD (Robert Carnwath, for example, sat in the Chancery Division before his elevation to the Court of Appeal), but he would certainly strengthen the Administrative Court’s judicial team if he does go to the Queen’s Bench.

There has always been a small but high-powered contingent of ‘planning’ judges in the High Court, including (in recent years) Robert Carnwath and Jeremy Sullivan (both now in the Court of Appeal) and Duncan Ouseley. Before that there was David Keene, who also went up to the Court of Appeal.

I shall look forward to reading the judgments of Lindblom J as much as I do those of Ouseley J and of Sullivan and Carnwath LJJ.

UPDATE (6.5.16 - somewhat belatedly): I have not previously drawn attention to the fact that Keith Lindblom went up to the Court of Appeal last Autumn, following the retirement of Sir Jeremy Sullivan. I am sure we were all sorry to see Jeremy Sullivan leave the bench; he was arguably the finest planning lawyer of his generation. However, Sir Keith Lindblom's promotion is a very welcome additon to the Court of Appeal. It is good to know that we have judges of this calibre dealing with planning cases in the higher courts.

© MARTIN H GOODALL

Early archives

As you are already aware, archives from the earlier version of this blog, covering the period from October 2008 to April 2009 can be accessed by clicking on the bar at the head of the page marked “OCT 08 – APR 09”.

Pressures on my time have so far prevented my uploading further material from the earlier blog, but the first year’s worth of material (from November 2005 to December 2006) is still out there in the ‘blogosphere’ and can be accessed at http://planningmatter.blogspot.com/
[Sorry - this is not a hyperlink, so you will have to copy and paste it.]

When the page opens, you can scroll down the right-hand column until you come to the monthly archives for each of those 14 months. Be warned, though, that those posts (unlike the archived material on this site) have not been updated, and so may have been overtaken by events, such as later judgments, and so they should be treated with a degree of caution.

It is still my intention to add to the archives in this blog as soon as I can get ‘a round tuit’ (they seem to be in very short supply these days), covering the ‘missing’ material from January 2007 to September 2008. That was the period when you had to pay the RTPI for the privilege of reading my deathless prose and, so far as I am aware, there is nowhere on the internet where it is currently available.

Ultimately, I would also hope to edit and update the material from November 2005 to December 2006 and upload it into the archives on this site, but you can at least read the ‘raw’ material in the meantime by accessing the old blog at the web address shown above.

© MARTIN H GOODALL

Financial consequences as a material consideration

The parameters or limits of material considerations seem to be a live issue at the moment. In Health & Safety Executive v. Wolverhampton City Council ([2010] EWCA Civ 892), in which judgment was given on 30 July, the Court of Appeal was concerned with the question of the materiality of an LPA’s liability to pay compensation when deciding whether or not to revoke or modify a planning permission. The potential cost to the Council of revoking or modifying the planning permission in question had been one of the factors which dissuaded the Council from taking this step, and this was one of the grounds on which that decision was challenged.

The case arose from a muddle over a planning application to erect student accommodation within the ‘danger zone’ of an LPG storage facility. In an initial response to consultation, the HSE had advised against planning permission being granted due to the proximity of the LPG facility, but the LPA had failed to follow this up as they should have done, and simply went on to grant planning permission. Had they followed the correct procedure, the HSE would have made a strong case for the refusal of planning permission on safety grounds, and the application would no doubt have been called in by the Secretary of State.

The issue was so important that the HSE could not let the matter rest, and pressed the LPA to revoke the planning permission, subsequently applying for judicial review in order to secure the quashing either of the permission itself or of the decision not to vary or revoke it. A further complication which would have prevented outright quashing of the planning permission was the fact that three out of the four accommodation blocks authorised by the permission had been completed and occupied by the time the matter came before the court, but variation of the permission so as to revoke the authorisation of the fourth block was still a legal and practical possibility.

Relief was refused at first instance (by Collins J) and the HSE then appealed to the Court of Appeal, who were unanimous in quashing the decision of the LPA not to make a revocation or modification order in respect of planning permission for the fourth accommodation block, basically because the LPA had ruled this out as a practical option without ever having given it proper consideration. However, there was a difference of opinion over the right of the LPA to take into account the financial consequences of making a revocation or modification order.

The Court was faced with two clearly conflicting judicial authorities - Alnwick DC v SSETR (2000) 79 P & CR 130, and R (Usk Valley Conservation Group) v Brecon Beacons National Park Authority [2010] EWHC 71 (Admin.) The majority view, following Usk Valley, was that where an LPA has to consider whether it is ‘expedient’ to exercise their statutory powers (for example under Sections 97, 102 or 172), the potential cost to the authority of doing so (in terms of the compensation and other costs that might become payable in that event) is a legitimate material consideration. However, the Court took the view that this does not apply to cases in which the issue of expediency does not arise, for example in a straightforward decision as to whether or not planning permission should be granted. In that case, the LPA does not have to consider whether it is ‘expedient’ to grant or refuse planning permission. It is not initiating action, but is simply responding to an application which has been made to it, and which it is bound to determine (failing which there is a ‘deemed refusal’ under s.78(2)). In that case, the LPA simply has to determine the planning application in accordance with ‘normal’ material considerations relevant to planning, as required by s.70 of the 1990 Act and s.38(6) of the 2004 Act.

The fact that Pill LJ delivered a dissenting judgment on the compensation point (while agreeing that a quashing order had to be made for other reasons) suggests that we may not have heard the last of this. Whilst an LPA clearly does not have to consider whether it is ‘expedient’ to grant or refuse planning permission, it seems to me that there is nothing in either s.70 of the 1990 Act or s.38(6) of the 2004 Act which necessarily prevents the financial consequences to the authority of making a particular decision from being a material consideration. Suppose, for example, that elected members were advised by their officers that a refusal of planning permission would very probably lead to an award of substantial costs against the Council on appeal. Might that not be a legitimate material consideration to be taken into account? I was under the impression that there was judicial authority precisely on this point which supported that proposition, but I have been unable to find the case I had in mind.

Despite the lengthy and carefully considered judgments, both by Ouseley J in Usk Valley and by Sullivan LJ in the Wolverhampton case, there continues to be uncertainty as to what can properly be taken into account as a material consideration in the determination of a planning application (as distinct from deciding on the expediency of revoking a planning permission or serving an enforcement notice).

UPDATE (July 2012). The Court of Appeal's decision has been upheld by a unanimous decision of the Supreme Court, confirming that when considering whether to revoke or modify a planning permission, a local planning authority can take into account as a material consideration the amount of any compensation which the authority might potentially be liable to pay to the landowner consequent upon that revocation or modification. The reference to the Supreme Court judgment is Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34.

© MARTIN H GOODALL

A much-needed reform

I have mentioned before the frustrations which many of us are experiencing in getting planning applications registered in face of the lengthy shopping lists contained in national and local check-lists. There seems to be an increasing tendency for LPAs to demand ever more information (even if it is demonstrably irrelevant to the development for which permission is sought) and to refuse to accept the application as valid until every bit of information, no matter how unnecessary or irrelevant to the application, is provided. I even heard recently of an LPA that rejected an application as ‘invalid’ but refused point-blank to say why they had done so. They simply told the applicant’s agent to read the check-list!

This nonsense has got to stop. Unfortunately, the obvious step of appealing against non-determination has been blocked off by the decision of the High Court in Newcastle Upon Tyne City Council v SSCLG on which I commented in this blog in May (see “Validation dispute goes pear-shaped”).

The original thinking behind the introduction of a single application form (1APP) was to assist developers and their professional advisers by introducing a standard application form across the whole country. The check-lists which were introduced with 1APP were intended to clarify what information should accompany a planning application, but (as I predicted at the time) the practical effect has been precisely the opposite of what was intended and, far from making the business of submitting a planning application simpler and more straightforward, it has made it far more difficult, bureaucratic, and hair-tearingly, blood-boilingly frustrating.

The government claims to be open to suggestions for law reform aimed at removing unnecessary bureaucracy. The requirements associated with the submission of a planning application must be a prime candidate for such reform. At the very least, an early opportunity should be taken to amend the wording of Article 20(3) and (3A) of the GDPO so that under Article 20(3), “valid application” means an application which consists of the prescribed application form, the ownership certificate, a design and access statement (where required) and, subject to paragraph (3A), “such particulars or evidence as it is reasonable for the authority to require under section 62(3) of the Act”, together with the requisite application fee. Paragraph (3A), which limits the scope of the requirement for the particulars or evidence etc. referred to in paragraph (3) to items in the local checklist should also be amended to refer to “such of those items....[in the local checklist]....as are reasonably required”. This would allow the reasonableness of the LPA’s information demands to be tested in an appeal against non-determination (thus reversing the effect of the Newcastle judgment) and would be a salutary discipline, backed up with awards of costs where necessary, to persuade LPAs to be reasonable in their demands for information.

The introduction of the ‘Decentralisation and Localism’ Bill (a Planning Bill by any other name) will provide the opportunity to amend Section 62(3) of the 1990 Act (as inserted by the 2004 Act). Ideally, the whole concept of national and local check-lists ought to be entirely swept away; we did perfectly well without them for well over 50 years. The opportunity might also be taken to do away with Design & Access Statements, another entirely unnecessary innovation which all too often involves drafting some meaningless waffle, simply in order to enable the planners to tick that particular box.

If that is too radical even for this ‘reforming’ government, then at the very least Section 62(3) should be amended to read : “The local planning authority may require that an application for planning permission should include (a) such particulars as are reasonably required to enable the application to be determined, and (b) such evidence in support of anything in or relating to the application as may be reasonably required for that purpose”.

Perhaps planning professionals should make a concerted attempt to persuade the government to adopt reforms along these lines.

© MARTIN H GOODALL

More material considerations?

I have drawn attention previously to cases in which the materiality of healthy eating and the risk of obesity have been in issue (see “Not-so-fast food” – 13 June).

Another tussle over what is or is not a material consideration in a planning context is currently taking place in a planning inquiry in Bristol. The City Council, acting against their officers’ advice, refused planning permission for a power station which would run on biomass. The argument put forward by objectors (which had swayed the elected members in their decision to refuse planning permission) is that the production of palm oil or other ‘bio-fuels’ on the other side of the world to feed such power plants will do terrible damage to the environment in those areas.

The counter-argument is that such considerations are far too remote from land use issues here or any other ‘planning’ considerations to be material to the determination of a planning application or appeal in this country. I gather the Inspector has already indicated that he is not prepared to take into account as a material consideration the issue of cultivating palm trees or other bio-mass in the Third World in the context of this appeal, which apparently leaves very little else by way of reasons for refusal which can be called in aid to support the refusal of planning permission in this case.

It will be interesting to see the Inspector’s decision letter, and how he deals with the issue of costs if a costs application were to be made. If the objectors feel sufficiently strongly about the matter, it could end up in the High Court, and some further judicial guidance on the limits of material considerations in planning cases might be helpful.

[UPDATE: The Secretary of State acepted his Inspector's recommendation and allowed this appeal. As I expected, a full award of costs was made against the Council. If the Council or a third party objector who took part in the inquiry wishes to challenge the decision, they have only 6 weeks from the date of the decision letter within which to lodge an application in the High Court.]

© MARTIN H GOODALL

Interpreting planning permissions again

In this blog on 22 June I commented on the judgment in Stevenage BC v SSCLG [2010] EWHC 1289 (Admin). Another case on the interpretation of a planning permission has subsequently come before the High Court in R (Prudential Assurance Co Ltd) v Sunderland City Council [2010] EWHC 1771 (Admin), in which judgment was given by Wyn Williams J on 15 July.

In this more recent case, a previous planning permission for retail development had been subject to a planning agreement under what was then Section 52 of the 1971 Act containing detailed restrictions as to the types of goods which could be sold from the retail units which the permission authorised. However, that agreement contained a clause (which is commonly found in such agreements) to the effect that the agreement would not prohibit or limit the use or development of the land in any way which was authorised by a planning permission granted subsequent to that agreement.

The subsequent planning permission the subject of the current proceedings authorised the subdivision of one of the retail units into two units. It seems that the LPA in issuing the permission for the conversion of one of the retail units into two units simply did not consider the possibility that this would have the effect of releasing the two units authorised by the new permission from the constraints imposed by the section 52 agreement. Nevertheless, it was plain from the terms of the Section 52 agreement that that is exactly what it did.

An attempt was made by the claimant (a rival developer) to construe the true intention of the planning permission by reference to extrinsic evidence, but the judge held that no extrinsic material was properly admissible to interpret the planning permission so as to achieve an interpretation of that permission which would mean that the use of the two units remained subject to the Section 52 agreement. In particular, the terms of the planning application in respect of another unit together with the material which supported that application could not be used as an aid to the construction of the planning permission in respect of the unit the subject of this dispute.

Wyn Williams J stressed that he had reached this conclusion quite independently of the decision of HHJ Waksman QC in the recent Stevenage case (cited above). Nonetheless the conclusions reached in that case were entirely consistent with his own and, obviously, he was fortified in his own view as a consequence. In the earlier case, the Deputy Judge had noted that if the Inspector in that case (in determining a Section 195 appeal) was correct to determine that the permission in question in that appeal did indeed encompass internal sub-division works, the resultant building was a new chapter in the planning history and/or section 75(3) of the Act applied, thereby having the effect of removing an earlier restrictive use condition and justifying the LDC granted. Essentially the Deputy Judge had reached the conclusion that the internal sub-division objectively formed part of the proposed works which were authorised by the planning permission. He reached that conclusion by a process of reasoning which was similar to that expressed by Wyn Williams J in this case.


© MARTIN H GOODALL

EIA for Polytunnels

The decision of the Court of Appeal early last month to give permission to appeal in R (Wye Valley Action Association Limited) v. Herefordshire Council and E C Drummond & Son [2009] EWHC 3428 (Admin) caused quite a stir among strawberry growers and other fruit farmers who have become accustomed to covering large acreages of land with polytunnels in recent years. Comments from the NFU and others on the judgment of Ian Dove QC which had been delivered in the High Court in December of last year seem to have been made without the benefit of reading the detailed judgment, and so it is worth going into what was in fact a thoughtful and carefully argued decision.

Until 2005, there were many people who thought that polytunnels were not to be classed as structures at all, but that was put beyond doubt by Waverley case (see below). The question which has now arisen is whether those polytunnels that do constitute development (and are therefore subject to the prior notification procedure under Part 6 of the Second Schedule to the GPDO or, in some cases, require express planning permission) should also be subject to Environmental Impact Assessment.

In the Wye Valley case, the application site was in an AONB, and up to 54 hectares of land would be covered with polytunnels at any one time, with individual blocks of polytunnels covering up to 10 ha each. The site is undoubtedly in a sensitive area. It is of significant landscape and built historic interest, with several listed buildings and a Scheduled Ancient Monument nearby , and the site abuts a Special Area of Conservation and an SSSI. Various public rights of way cross the application site and provide views towards it.

Prior to determining the planning application, the LPA adopted a screening opinion in which they determined that the proposal did not fall within either Schedule 1 or Schedule 2. Their Screening Opinion stated that the application involved the rotation of polytunnels for the purposes of growing soft fruit in the ground and on land that is already cultivated (mixture of arable and turf production) and that therefore the application would not require an Environmental Statement to be submitted. It was this, and in particular the Council’s determination that the development did not fall within Schedule 2, which was the subject of challenge in the High Court.

Natural England had observed in response to the Council’s consultation that rotation of polytunnels at Homme Farm is too infrequent to act as mitigation, and that polytunnels would be an annual feature in the landscape. On that basis they confirmed their landscape objection to the proposal.

The case clearly turned on the interpretation of the Town and Country Planning (Environmental Impact Assessment) Regulations 1999, which give effect to the Environmental Impact Assessment Directive (85/337/EEC) . By Regulation 2, “EIA Development” includes Schedule 2 development “likely to have significant effects on the environment by virtue of factors such as its nature, size or location..." The precise category in which the objectors claimed the proposals fell was paragraph 1(a) of Schedule 2 - "Projects for the use of uncultivated land or semi-natural areas for intensive agricultural purposes..."

The Court therefore had to consider whether or not the area within which this proposal is sited is “a semi-natural area”. To cut a long story short, the Deputy Judge concluded that whilst the European and UK guidance on this topic (which he quoted extensively) was helpful, it simply confirmed the view which he would have held, even without it, applying the wide scope and broad purpose of the Directive and construing the term "semi-natural".

The starting point, he suggested, is that in this context "natural" means untouched by man. It is well known that most of the landscapes of England have been subject to some extent or another to the hand of man artificially denaturing them through agriculture or through technological activity associated with settlement of the landscape. Semi-natural land is land where there has been some interference with that landscape, but the natural qualities which preceded or continued alongside man's activities are still clearly and obviously evident in the natural environmental capital of the area.

During the course of the argument, reliance was placed by the Council on the fact that the land was, and still is, cultivated, and that this should have an impact on whether the land is semi-natural. Obviously, the fact that there has been agricultural cultivation is a relevant factor, but it could not, in the Deputy Judge’s judgment, be determinative, because the language of the 1999 Regulations is "uncultivated land or semi-natural areas". That clearly contemplates that semi-natural land may be cultivated and, therefore, the fact of cultivation cannot remove land from this category. The fact that land has been cultivated does not automatically exclude it from the status of being semi-natural. This is where the Council went wrong, by assuming that because the land is already cultivated it is not covered by Schedule 2. There could be a Schedule 2 project on semi-natural land which had been the subject of cultivation.

The site also needed to be considered not only by itself but in the context of the wider area in which it was situated. This was a site which abuts a European designated site of nature conservation status, a Special Area of Conservation, and a site of Special Scientific Interest, a site which is within the AONB, overlooked by a Scheduled ancient monument, which clearly comes within the definition of "semi-natural area" as a matter of law. It is an area which has within it a significant number of designated sites, or areas, some of which are overlapping, and which are redolent of the high quality natural environment of the kind which could be described as “semi-natural".

The next question which arose was whether this was a project for intensive agricultural purposes. The purpose of providing the polytunnels is to engineer a step change in the productivity of the land. Whilst the crop grown remains the same, the amount of the crop and the length of time the land can be used to cultivate it is substantially extended. The productivity of the land is substantially improved. That is the object of this development.

This therefore led to the conclusion that the Council had made an error of law in finding that this development was not a project within Schedule 2 and so their decision had to be quashed, because in consequence of that the Council had failed to undertake an environmental impact assessment of the proposal. They failed to go on to consider whether or not the project would have significant environmental effects and, therefore, whether or not it required an environmental statement.

This case is expected to be heard in the Court of Appeal in November, so we have not yet heard the end of this. But this is a robust judgment which it may prove difficult to overturn.

© MARTIN H GOODALL

________________________


The subject of polytunnels was one of the very early topics to be covered in this blog. At the time I wrote the piece (late in 2005), I had not been aware that this subject had recently been the subject of an appeal in the local authority area where I used to work which was heard and determined by an Inspector of my acquaintance. He told me when I met him a short time later that he was greatly relieved that what I had written coincided with what he had decided in the appeal! The appellants in fact challenged the decision (in R (Hall Hunter Partnership) v First Secretary of State and Waverley Borough Council and Tuesley Farm Campaign/Residents Group [2006] EWHC 3482 (Admin), when Sullivan J (as he then was) upheld the Inspector’s decision and agreed that polytunnels can amount to development.

Here is what I wrote:

Polytunnels

[2 December 2005] I was re-reading a copy of Planning the other day and revisited the ongoing debate over polytunnels. I no longer act for one of the largest strawberry growers in the country, so can comment on this topic without fear of prejudicing my clients’ interests.

Obviously it will be a matter of fact and degree in each case, but it seems to me that quite a few polytunnels now in use do amount to permanent structures for planning purposes and their erection thus constitutes development.

It is worth bearing in mind the tests originally propounded in Cardiff Rating Authority v. Guest Keen Baldwin ([1949] 1 KB 385),where one looks at size, attachment to the ground, how far its erection involves construction or assembly (as opposed to merely lifting it into place) and permanence. The other leading authority is the more recent case of Skerritts of Nottingham (which involved a marquee).

On the one hand it will no doubt be argued that polytunnels can be erected and dismantled by staff or agricultural contractors without specialist equipment or labour, but even in this case, if the polytunnels remain in place for more than a few months (let alone a year or more), they are likely to be seen as permanent and therefore in the nature of structures.

As one correspondent has pointed out, some polytunnels are complex assemblies with a substantial framework. They are fixed in place with deep anchors screwed into the ground by machine, and some can be a much as 5 metres high, extending over a considerable acreage. Polytunnels of this nature would clearly be structures, applying the tests both in Cardiff Rating and in Skerritts, and the work involved in their erection would undoubtedly come within the definition of either building or engineering operations in Section 55.

In principle, such structures should come within Class A in Part 6 of the Second Schedule to GPDO, although this should not be automatically assumed – the conditions and limitations applying to that class should be carefully checked. Provided a structure qualifies within Class A, planning permission is not required as such, but there is an absolute requirement to give prior notification, enabling the LPA to decide whether it wishes to approve the siting and design of the structures. If the structures are erected without the prior notification procedure having been strictly complied with, then their erection will not be permitted development and will therefore be unlawful, and the LPA would be perfectly entitled to issue an enforcement notice requiring their removal. I am aware of such enforcement notices having been upheld on appeal, and having survived at least one High Court challenge.

So, if polytunnels are a bone of contention with your authority, you may well be able to do something about it.

© MARTIN H GOODALL