Monday, 30 July 2012
Buildings or structures - the Woolley Chickens case
One of the perennial problems for planning lawyers is whether objects placed on land which are allegedly ‘portable’ or ‘moveable’ or ‘temporary’ are in truth buildings or structures, so that their installation, assembly or erection on the site comes within the definition of development in section 55 of the 1990 Act, thus requiring planning permission under section 57.
We have been accustomed for many years to refer to the test originally set out in Cardiff Rating Authority v. Guest Keen Baldwin  1 KB 385 as refined by later decisions such as Skerritts of Nottingham Limited v SSETR  2 P.L.R. 102, and we now have a further case which provides additional clarification of this issue. This is the ‘Woolley Chickens’ case – R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council  EWHC 2161 (Admin), in which judgment was given in the High Court last Friday (27 July).
This was a challenge to a decision by the Council that ‘chicken sheds’ (or ‘mobile poultry units’) in the Woolley Valley were not development. The Claimant contended that the poultry units were “development” within the meaning of section 55, and further that they required EIA, pursuant to the EIA Regulations and the EIA Directive. The Secretary of State supported the Claimant’s position on both these points.
The poultry units were each intended to house 1,000 laying hens (although in practice they accommodate ducks); each unit is approximately 20 metres by 6 metres by 3.5 metres high; the units are not fixed to the ground but are on metal skids to allow them to slide along the ground when pulled by a tractor; if extreme winds are forecast, they can be held down with metal spikes; each unit weighs about 2 tonnes (in addition to the 2 tonne flock of birds which each unit houses); each unit is located in a fenced paddock of 1-2 acres and stays in its paddock; the intention was that the units would be moved within their paddocks regularly (approximately every 8 weeks) by being dragged by a tractor or 4 x 4. Each unit can be assembled by a ‘skilled team’ from metal hoops, metal skids, uPVC planks, polythene and insulation in ‘a couple of days’. If the metal hoops are not taken apart, a shed can be dismantled in 3-4 hours. The units contain slatted floors, manually operated conveyor belts, drinkers, feeders and internal lighting. They are powered by an on-site external generator. The units are supplied with mains water by means of a hosepipe connection to standpipes, which are located along the side of the access track.
The units have not, in fact, been moved in the way that was originally envisaged. There was evidence before the court that none of the units has been moved since being placed in position between April and October 2010. There had been some attempts to move the units within the paddocks but the towing support bars supplied by the manufacturer failed.
The Council decided that the placing of the poultry units on the land did not constitute development. The Council therefore concluded that no EIA of that activity was required and no enforcement action could be taken. The Council’s planning judgment was based on their size, permanence and physical attachment to the ground, as a matter of fact and degree. The Council considered that factors weighing against the sheds being buildings were their lack of attachment to the ground and ability to be moved around the site. However weighing in favour of them being buildings were their sheer size, weight and bulk. The developer had produced a planning appeal decision dating from December 2009 against the refusal of a Lawful Development Certificate, in which it had been concluded that a mobile poultry unit measuring 9.5m x 5.5m x 3.2m high did not constitute a building for the purposes of section 55 of the Act. In that case, only one unit had been proposed. It housed 465 laying hens, was delivered as a flat pack and assembled on site by two unqualified people in two days. It was not anchored to the ground, nor did it require a hard standing, and it could be moved by a tractor and was expected to be moved every 15 months. [This commentator feels bound to observe that, in view of this last fact, that earlier appeal decision was arguably wrong in law, even at that time - see Skerritts.]
In the present case, the 10 units would be larger and heavier, but were intended to be moved more frequently and assembled on site in the same way as in the cited appeal case. The Council also noted that the dimensions of each unit were almost the same as the dimensions of a twin-unit caravan as defined in section 13 of the Caravan Sites Act 1968 (which are: 20 metres long, 6.8 metres wide and 3.05 metres high). On the basis of the information supplied and as a matter of fact and degree, the Council’s officers considered that the mobile poultry units would appear to be ‘chattels’ capable of being moved around the site by a 4x4 vehicle. Furthermore, once assembled they could be dismantled and loaded onto a flat bed lorry in a matter of hours and transported to other sites. On this basis the Council’s officers concluded that these units did not constitute development.
The Council submitted that it had correctly applied the test in Skerritts in deciding whether or not the poultry units were ‘buildings’, which in turn referred back to the test in the Cardiff Rating case. The Council had assessed the evidence, and acknowledged that the “sheer size, weight and bulk” of the units pointed towards a finding that they were ‘buildings’. However, these factors (the Council said) were outweighed by the fact that the units were not attached to the ground, and were mobile. The Council claimed that, on the evidence, it was entitled to conclude that the units were impermanent and were chattels, not buildings.
However Mrs Justice Lang held that the Council erred in law in taking too narrow an approach to the meaning of “development” in section 55. The term “building” in section 336(1) of the 1990 Act has a wide definition which includes “any structure or erection”. This definition has been interpreted by the courts to include structures which would not ordinarily be described as buildings. In Skerritts, an Inspector held that the erection of a 40 metre by 17 metre by 5 metre high marquee for an eight month period was the erection of a building. In Hall Hunter v First Secretary of State  2 P. & C.R. 5 the erection of polytunnels was also the erection of a building. Both decisions were upheld by the Courts.
In the light of these authorities, the Council should have carefully considered whether a poultry unit was an “erection” or “structure” within the meaning of section 336(1), particularly bearing in mind the substantial size and weight of each unit. Furthermore, the Council did not have regard to the relevant authorities when it concluded that the units were chattels, not buildings, by reason of the fact that they were capable of being moved around the site. In Barvis Ltd v Secretary of State for the Environment (1971) 22 P & CR 710, a tower crane on a steel track was held to be a “structure” or “erection” and thus a “building”, even though it was moved around the site and, at the end of the contract, it would be dismantled and removed to another site. Moreover, an object may be a building in planning law without being incorporated into the land, as part of the realty (see R v Swansea City Council ex p Elitestone (1993) 66 P. & C.R. 422. )
Moreover, the Council did not direct itself correctly in law on the issue of permanence. Permanence has to be construed in terms of significance in the planning context. In Skerritts Schiemann LJ said of permanence: “in situ for how long, to which I would answer: for a sufficient length of time to be of significance in the planning context”. For the polytunnels in Hall Hunter to remain in one particular location for three months was found by the Inspector to be sufficient to be of consequence in the planning context. In this case, the units were permanently in their field, and there was no limit on the length of time they would remain there – they could be there for years. The ability to move them around the field did not remove the significance of their presence in planning terms. The visual and landscape impact of the units was not affected to any material extent by any periodic changes to their position in the field. [N.B. This is an important change compared with the previous understanding as to periodic movement of items within a site.]
The Council submitted that each unit was prefabricated and easily assembled, so its construction was not an operation “normally undertaken by a person carrying on business as a builder” (section 55(1A)(d)). They had argued that it followed that constructing the units was not a “building operation” within the meaning of section 55. However, in Her Ladyship’s judgment, section 55(1A) is inclusive; it is not intended to be an exhaustive definition of “building operations”. In any event, she accepted the submission made on behalf of the Secretary of State that the works carried out to construct and install the units were capable of coming within section 55(1A)(d). The Council had failed to consider the application of that paragraph of the sub-section.
The Secretary of State also submitted that the Council erred in failing to consider whether the construction of the poultry units came within the residual category in section 55(1), namely, “other operations in, on, over or under land”. This residual category is not limited to building, engineering or mining operations: see Coleshill and District Investment Co Ltd v. Minister of Housing and Local Government  1 WLR 746 and Beronstone Ltd v. First Secretary of State  EWHC 2391 (Admin). (In light of these judgments, the view of Jack J. in Tewksbury Borough Council v Keeley  EWHC 2954, which appears to decide to the contrary, cannot be relied upon.). The Court agreed that this term is sufficiently broad to encompass the construction / installation of the poultry units, if they do not fall within the meaning of “building operations”, and therefore the Council should have gone on to consider this question.
The Council was therefore held to have misdirected itself in law in its application of section 55 of the 1990 Act to the poultry units.
I confess that I have always had difficulty with the concept of “other operations”, not least because of the decision of the House of Lords in Coleshill that the term is not to be construed ejusdem generis with the other items in the list - “building”, “engineering” and “mining”. This latest judgment could have wide implications in bringing within the definition of ‘development’ a number of operations which might not previously have been thought to be development.
As I observed in passing, this judgment also appears to bring within the scope of ‘development’ a number of portable, mobile or temporary items that are moved about a site from time to time, and which had previously been thought successfully to escape the definition of development by virtue of that device. This is a case which appears to me to sweep into the net a wider category of ‘non-structures’ (which must now be regarded as buildings or structures) than had previously been understood to come within that category.
There must inevitably be the possibility that the developer may seek to appeal to the Court of Appeal. However, on a first reading, I found Mrs Justice Lang’s reasoning compelling. This judgment could prove to be a new benchmark for determining the issue of whether operations of this type come within the definition of development under section 55.
I am grateful to counsel for drawing my attention to this judgment.
© MARTIN H GOODALL