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 [1949] 1 KB 385 as refined by later decisions such as Skerritts of Nottingham Limited v SSETR [2000] 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 [2012] 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 [2007] 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 [1969] 1 WLR 746 and Beronstone Ltd v. First Secretary of State [2006] EWHC 2391 (Admin). (In light of these judgments, the view of Jack J. in Tewksbury Borough Council v Keeley [2004] 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.



  1. Hi,

    How does this decision impact on residential properties using 'temporary stuctures'for residential purposes?

    Such as a box trailer permanently parked and attached through the tow hitch to the building, and then used to garage a vehicle.
    Does the trailer then effectively become a garage/structure in planning terms and subject to enforcement for unlawful use and/or unlawful development?

    Or is this already catered for in the planning legislation and case law?

    Thoughts please?

  2. I advised a client earlier this year regarding this issue, which (as has been suggested above) may well be affected by the ‘Woolley Chickens’ case – although it would not affect the particular case on which I advised my client. This is not a straightforward point, and I was obliged to charge £600 plus VAT for my legal advice. In fairness to that client, I could not now broadcast that advice to the world free of charge, and so if my anonymous correspondent requires an answer to this query, he should please email me to arrange to deposit the necessary sum on account of costs (£600 plus VAT = £720). This is remarkably cheap, as I usually reckon to charge not less than £1,500 plus VAT for written legal advice nowadays.

  3. Dear Martin
    Does this decision not lead to more confusion? The phrases degree of permanence, matter of fact and degree are beyond interpretation. No ordinary person could be expected to work within such phrases and thus the law seems unintelligible.
    Do hen houses at 4.8m x 2.4m housing 100 birds, moved every few weeks fall as a permanent structure?

  4. The implications of the judgment could potentially be quite far reaching. The answer to Lionel Smiths’s question is – “Yes, quite possibly” (although the precise answer would depend on a more detailed assessment of the circumstances). Inevitably every single case is going to be judged individually as ‘a matter of fact and degree’. Arguably, the ‘Woolley Chickens’ case could have been decided on the existing law (Cardiff Rating, plus Skerritts) without the need for the additional judicial observations in this case, which appear to have widen the judicial definition of a building or structure.

  5. Thank you for your answer Martin. This is a somewhat worrying development because if every single case falls to somebody elses opinion, then how do we know wrong from right? The financial implications alone would be of concern let alone the time delays caused by planning authorities.

    It feels from your answer that we could face the prospect of having to judge whether every structure upon the farm is either a chattel or structure. After that decision is made, if it is considered a structure, then we are faced with having to find out is it a structure requiring planning permission or is it a structure that is considered moveable that does not need permisions?

    If I have the above analogy correct (and I do not profess to know whether I do or don't) then surely this is not the way to live and work?
    Kind regards

  6. This will not be such a problem for farmers as it may be for people involved in other, non-agricultural, activities (such as the keeping of horses). Provided an agricultural building or structure meets the relevant criteria, it may well be permitted development under Part 6 of the Second Schedule to the General Permitted Development Order. This is, of course, subject the requisite prior notification having been given to the local planning authority, who may wish to approve details of the siting and design of the building or structure in question. However, failure to give prior notification as required by Part 6 would take the development wholly outside the scope of permitted development within Part 6, and retrospective permission could then be given only by way of a full planning permission (if granted).

    The other point to bear in mind is that if ‘mobile’, ‘portable’ or ‘temporary’ items do prove to be buildings or structures and, for one reason or another, are not permitted development under Part 6, it will simply be necessary to make a planning application, which is not a particularly onerous task.

  7. This is certainly "woolley", Just think of all the planning applications that will have to be made to retain cattle feeders, shipping containers, caravans, pig arks, 'mobile' field shelters... or is it all a matter of 'fact and degree' as to how big the item needs to be?

  8. Evan is absolutely right. The implications of this judgment are rather worrying. It is indeed going to be ‘a matter of fact and degree’ in every case, but quite a few of the items Evan lists could be caught in future. However, if genuinely needed for agriculture on an existing agricultural unit, many of these things could be permitted development under Part 6. The real problems would arise on other sites where this development doesn’t qualify as PD under Part 6.

  9. Hi Martin,

    Sorry to bring up this one - but in the case of static caravans? I have one in my garden, 3m tall, within 2m of the boundary. Local planning says it has to go, or I must apply for planning permission. Surely the Measor Principle still stands in that the council cannot define a static caravan as a structure for the purposes of the 1990 act or the later GPDO legislation?


  10. In light of the decision in the ‘Woolley Chickens’ case, there must be considerable doubt as to the continued application of the principle that was demonstrated by Measor in 1998. In that case, it was held that caravans lack the degree of permanence and attachment to constitute buildings. Even as early as 2000, the Skerritts of Nottingham case demonstrated that ‘permanence’ could be established by the presence of the object in question for only a few months. The fact that the object (such as a caravan) is theoretically capable of being moved will not prevent its being regarded as a structure, if in practice it remains in one position for a significant length of time (i.e. for more than a few months). The ‘Woolley Chickens’ case seems to go even further than this, and suggests that even moving the object about the site from time to time may not save it from being classed as a structure.

  11. Perhaps since the Dale farm debacle anybody using caravans has been prejudiced by this judgment, particularly the smallholder. This judgment is unlikely to impact the thousands of dishevelled sheds on allotments, or the large scale intensive farmer. However as a smallholder we have been using the odd caravan for the past 4 years and go to appeal annually to justify each caravan when it arrives (the enforcement notice usually follows within weeks).

  12. Hi Martin
    I would like your opinion on the following please. Would you consider that a 2 bay stable block was a temporary structure or would it fall under the definition of "development" ? It was brought onto the field immediately next to our house (within 15 metres of our bedrooms) in November 2012 and erected on site by 2 men over 3 days. The land upon which it sits had to be levelled and compacted. It now forms one side of a stable yard facing us. The other 4 bay stable did not have permission, but after 2 years of dithering, the Council finally decided it was not expedient to take enforcment. The 2 bay stables has never moved an inch since it was built. Last month mains electricity was connected to it from the existing 4 bay stables. I sent the Wolley Chickens judgement to the PEO. Her response was that the sheds in that were bigger than the stable block (?) and that there were lots of them, in contrast to this situation. She also said that even if the building was considered to be development (which she maintains it is NOT) it does not need PP because it causes no harm. It actually causes significant problems for us in terms of smell, flies, noise and disturbance, pollution (the waste is swept out onto the yard which drains down onto us and lies immediately next to us). I have asked for the enforcement assessment which has decided there is "no harm" caused by the additional permanent stabling but she says this is not required, her opinion is final. Surely, the issue here is that it is development and as such must be fully assessed ? Oh, and this is all in an AONB ! the impact on us is that the stench, flies, fumes from Farrier, constant noise (7-7 every day including Xmas day !) has removed quiet enjoyment of our home, removed all privacy and caused us to fear fire and disease. HELP !

  13. In answer to Gill (18/02/14), I would say that the stable is a building or structure within the meaning of section 55 and section 336(1), for the reasons rehearsed in this blog post (including the “Woolley chickens” case) and so it requires planning permission. However, a decision by the council as to whether or not to take enforcement action is a matter of discretion, and they will not do so if they consider that it is not ‘expedient’* to serve an enforcement notice (* the word used in section 172).

    If no enforcement notice is served, the operational development will become immune from enforcement 4 years after it was substantially completed, but any change of use of the land (e.g. from agriculture to an equestrian use – “horsiculture”) will become immune from enforcement only after 10 years of continuous use for that purpose following the change of use.

    As explained elsewhere in this blog, when operational development becomes immune from enforcement under the 4-year rule, the use of the building and of the land on which it stands does not thereby become lawful, and will still be governed by the 10-year rule. This is a further issue which the council ought perhaps to consider, particularly bearing in mind the nuisance that this use clearly causes.

    If the enforcement officer still refuses to take the matter seriously, I suggest you contact a local councillor and press them to ensure that effective action is taken to tackle the problem.

  14. Hi Martin
    Many thanks for your advice and for your time. Can I ask you just one more question (well in 2 bits !) 1.a - does there not have to be an expediency assessment ? and 1b - in deciding on expediency does the PEO not have to have regard to material planning considerations - noise, nuisance, disturbance, loss of privacy, fear of crime ?
    I am most grateful for your advice.

  15. In answer to Gill’s further query, the LPA must consider whether it is expedient to serve an enforcement notice under section 172, but this does not involve any formal assessment; it is simply a matter of professional judgement. The matters that Gill refers to are all material considerations that the enforcement officer should take into account, but in practice it is very difficult to prove that they have not been considered. Judicially reviewing a decision not to take enforcement action is well nigh impossible – I can only think of one example of a mandatory order made by the High Court requiring the service of an enforcement notice; there may have been one or two others, but they really are extremely rare. Political pressure (via elected members) may be the only practicable chance of securing enforcement action in such cases, if at all.

  16. How does the "Woolley Chicken" case sit with R v Schonewille 2010, in which the Court of Appeal in 2011 held that a caravan incorporated into a large former workshop and used for residential purposes was still a caravan. The caravan was removed of mobility, remedial work had been done to a damaged floor, a replacement floor was fitted, the floor was structurally supported by wooden pillars concreted into the ground. In addition the rear wall of the building had been removed and later replaced once the caravan was inside, internal walls were created within the building structurally supported by both the caravan and the building, attachment to both was facilitated.

  17. Eastleigh and Fareham Borough Councils, which border the River Hamble, require planning permission to place floating pontoons between piles in the river. The pontoons are fixed to the piles and are easily moveable. Is it lawful for the councils to require planning permission?

  18. Providing moorings or forming a marina on any estuary, river or canal, may be a material change of use of the land covered by that water, but the provision of any permanent fixtures or fittings, such as mooring blocks either on the bank or on the river bed and the provision of jetties, pontoons, boardwalks and other facilities, will almost certainly be engineering operations that will require planning permission.

  19. Thank you for that comment for which I am very grateful. However, I am afraid I have not explained clearly enough. The mooring piles in the river are already used for mooring pairs of boats. The effect of placing a floating pontoon between them, which as I say is completely removable, is to move the boat one metre further apart. Is this a material change of use? I should be very grateful, additionally, if you could consider this.

  20. As I pointed out in my previous comment, the provision of pontoons, boardwalks, etc. is likely to be seen as an engineering operation. Whether a change of use is also involved will depend on whether the provision of the pontoon leads to such an intensification of use of the moorings as to change the character and impact of the use to such an extent as to be material in planning terms. This is bound to be a matter of fact and degree and may only become apparent over a period of time.

  21. With regard to the comment of 02/07/14, I do not consider that R v. Schonewille has any bearing on the Woolley Chickens case. In Schonewille the question before the court was whether or not there had been compliance with an enforcement notice that required “removal of the caravan from the land”. In purported compliance with the notice, the appellant had moved the caravan and installed it inside a building on the site. In his defence it was argued that it had thereby ceased to be a caravan and had become part of the building. This argument was rejected; the caravan had not been removed from the land and the conviction was upheld.

    At no point does it appear to have been argued on either side that the caravan in its original location was a building or structure, by reason of its permanence on the site. (This is the essential point established by the Woolley Chickens case.) It appears that in Schonewille the LPA proceeded on the basis that the stationing of the caravan was a change of use of the land, and the dispute focussed on whether the steps required to be taken in order to comply with the notice had in fact been taken.

  22. Am I misinformed?
    s55(2)states that agriculture is not to be taken as development of land, and so s57 says planning permission is not required. s336 gives the definition of agriculture which seems to include poultry. So why did they need planning permission?

    My circumstances are that I wish to erect an open-sided field shelter for a horse (been there 20 years). I see that s366 includes grazing land as agricultural and so feel that s55(2)(e)means that a reasonable structure would not be development and so exempt from planning permission.

    Have I lost the plot?

  23. Section 55(2) relates to changes of the use of land (including any existing buildings; it does not allow new buildings to be erected. Certain buildings for agricultural purposes may be erected as permitted development under Part 6 of the Second Schedule to the GPDO, but only on larger agricultural units (5 hectares or more) and subject to a prior notification procedure. The poultry farmer in the Woolley Chickens case thought the ‘mobile’ poultry houses were not buildings or structures, so did not use the prior notification procedure under Part 6.

    Keeping of horses (as opposed to their simply being grazed on the land is not an agricultural use, so PD rights under Part 6 would not arise in that case. If the alleged use is for grazing, the whole planning unit (which would have to be 5 hectares or more in size)would genuinely have to be in agricultural use for any PD rights under Part 6 to arise.

  24. Further to my previous post (30/9/14}
    Town and Country Planning Act 1990
    Section 55(2) states:
    (2)The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—
    (e)the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;
    Section 336 includes “grazing animals” as agriculture. I fail to see any differentiation between recreational and commercial intentions.
    I fully accept that is not a loop hole to develop an equestrian centre. PD is not available to me as without renting further land I do not have the 5ha requirement nor is this a business use in any event.
    My argument, is that a field shelter (and nothing more elaborate than that) becomes a “building occupied together with the land so used;” for the agricultural use of grazing animals, in this case horses.
    In my case, the whole land provides winter hay and grazing on a 3.5 ha site. I accept that a 20 horse stable block requiring significant external food resources is well beyond the grazing of the land.
    You refer to keeping of horses being different from grazing of horses, and I believe that such a difference is the difference of a capacity beyond what the land can support naturally as grazing, as illustrated above.
    So I come back to the argument that a horse and pony on 3.5ha which essentially supplies all their forage needs with a hay crop, is grazing rather than a more intensive ‘keeping of horses’. Whilst irrelevant to myself, I would argue that the number of horses could be could be as much as the land could take, even with winter feed being imported (but not summer) but not so many so that stabling or other hard standing is required to reduce the damage and impact to the land that would otherwise be unsustainable.
    As for s55 referring only to change of use, I quote:
    55 Meaning of “development” and “new development”.
    (1)Subject to the following provisions of this section, in this Act, except where the context otherwise requires, “development,” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land.
    I say that the erection of a field shelter is a new development by way of being “the carrying out of building”.
    And so s55(2)(e) goes on to give the exemption for planning permission. I can’t see that s55 is exclusive to change of use but quite clearly encompasses “material change of use” as ‘development’ which will therefore require planning permission unless exemptions apply.
    Ultimately I feel that the legislation is intended so as not to fetter reasonable use of grazing land but prevent undesirable development, by way of structures or use.
    I would appreciate your comments and ultimately do I need permission for a modest field shelter in my circumstances as described?

  25. The reference in section 55(2)(e) to “the use.....of any building........” refers only to the use of any existing building on the site for that purpose. It does not allow the erection or installation of any building. The erection or installation of a building or structure of any description on agricultural land requires planning permission, either as granted by Article 3 and Part 6 of the Second Schedule to the GPDO (not applicable in this case) or in the form of a planning permission granted by the LPA.

    Whether the presence of horses on the land is ‘grazing’ (agriculture) or what is colloquially known as ‘horsiculture’ (the keeping of horses on the land) depends on the purpose for which they are there. If they are let onto the land occasionally solely for the purposes of feeding, i.e. grazing on the grass, then that is an agricultural use. However, if they spend their whole time, or substantial periods of time there, then this is likely to be seen as the keeping of horses on the land (i.e. a non-agricultural use, which therefore amounts to a material change of use). This is ‘a matter of fact and degree’, but the presence of facilities such as a field shelter or loose box, etc. would seem to strengthen the impression that is an is a non-agricultural use. It may be acceptable in a rural area in planning terms, but requires planning permission.

    I am afraid that the questioner will not find a single planning professional who would agree with his purported interpretation of section 55.

  26. Dear Martin

    I am intrigued how the the Woolley Chickens case might impinge on Goverment policy.

    Specifically this from the National Planning Policy Framework
    "A local planning authority should regard the construction of new buildings as inappropriate in Green Belt. Exceptions to this are: limited infilling or the partial or complete redevelopment of previously developed sites (brownfield land), whether redundant or in continuing use (excluding temporary buildings), which would not have a greater impact on the openness of the Green Belt and the purpose of including land within it than the existing development.

    Will the meaning of 'temporary buildings ' now be defined by this case?

    A scenario that springs to mind. 10 year plus storage depot using shipping containers bolted to the ground on a brownfield site.


  27. What the ”Woolley Chickens” case does is to clarify further the definition of a building or structure for planning purposes. In other words, does bringing the object in question onto the land constitute a building operation (and therefore development within the definition set out in section 55 of the 1990 Act), or not? If it is not built development, its stationing on the land might still represent a material change of use of the land. The ”Woolley Chickens” case really has no significance beyond this, and certainly not in terms of the operation of planning policy.

    Planning policy, both in local planning authorities’ development plans and in the NPPF, is to discourage development in the Green Belt unless it is not ‘inappropriate’ development (see the definition of this in the NPPF) or unless there are very special circumstances which could justify it. This can apply both to operational development (building, engineering, mining or other operations) and to material changes of use.

    If operational development has taken place without planning permission, it will (provided it has not been materially concealed to any extent) become immune from enforcement, and therefore lawful, four years after this development was substantially completed. Subject to the same proviso regarding concealed development, a material change of use (other than a change of use to use as a single dwellinghouse) will become immune from enforcement, and therefore lawful, following ten years of continuous and uninterrupted use after the material change of use took place. That, however, does not necessarily provide any sort of lever in terms of gaining planning permission for replacement of the objects or structures on the site (especially if they are in the form of shipping containers), still less can it operate as any sort of justification for the more comprehensive redevelopment of the site.

    In view of adopted policies, the scenario that Peter postulates would still be likely to meet with strenuous opposition from the LPA, and is likely to get short shrift from the Planning Inspectorate if a refusal were to be appealed.

  28. I am not a planning professional, which will become obvious, but have read this blog with interest. Mrs Justice Lang appears to have defined temporary moveable buildings very narrowly and indeed most structures would be defined as buildings. I assume because the Woolley case had generated so much public interest!
    Reading around I found another more recent case John Turner v SSCLG [2015] EWHC 2728, again heard by Mrs Justice Lang. However, in her judgement paragraph 29 she states 'the mobile home which was to be replaced was not a "building"'. Using her definition in the Woolley case the mobile home clearly was a building.
    Do you believe that Mrs Justice Lang has overruled herself in this case?

  29. I am grateful to my anonymous correspondent for drawing attention to this other judgment. I shall have to take a look at it. So watch this space! I'll post a further comment here shortly.

  30. I have now taken a look at the judgment in Turner (which, incidentally, has recently been upheld by the Court of Appeal). It turns out that the legal status of ‘mobile’ structures did not feature in the judgment at all, and so this judgment has no effect on Lang J’s earlier judgment in the Woolley Chickens case.

    What Turner was about was the dismissal of an appeal against the refusal of planning permission for a permanent replacement of various ‘temporary’ structures/objects in the Green Belt. The case turned on the interpretation of polices to protect the openness of the Green Belt, and in particularly paragraph 89 of the NPPF. Unsurprisingly, the Inspector’s decision dismissing the planning appeal on these grounds was upheld, first by Lang J in the High Court, and now also by the Court of Appeal.

  31. Martin, I was wondering what the position was in respect of shipping containers? Many people are now using them for secure storage. Whilst they are not necessarily fixed to the ground, and can be moved with a crane, if they remain on site for a long period of time (say several years) have they become a permanent structure? I would be interested in your thoughts. Many thanks, Andrew

  32. In answer to Andrew Gardiner’s query, I am reasonably sure that, having regard to the ”Woolley Chickens” case, a shipping container would be regarded as a building or structure if is put there (other than for a very short time) so that items can be stored inside the container. The only exception would be the use of a site for storing the shipping containers themselves in such a way as to amount to a storage use under Use Class B8.

    So the distinction between operational development and a storage use depends on the purpose for which the shipping container is brought onto or left on the land. If it is put there for the purpose of storing the container itself (in most case with other containers), then it is more likely to be seen as a storage use falling within Class B8. But if the container is put there so that items can be stored inside the container, then the stationing of the container on the site is more likely to be seen as operational development.

    I have dealt with this point on page 50 of my new book, The Essential Guide to the Use of Land and Buildings under the Planning Acts (in paragraph 4.1), although I have only referred specifically to shipping containers in the context of their being stationed within a residential planning unit, on page 179 (in paragraph 13.15.11). Nevertheless, the stationing of a shipping container as a storage unit on any site (not just a residential property) would seem to me to amount to operational development.

  33. Very interesting blog.Wonder how you get the time!
    If one manages to keep a large (wedding) marquee up for 4 years with the the following parameters:

    Marquee frame is bolted onto concrete.
    The frame has stayed up continuously for 4 years+
    The covers are routinely removed during the winter and windy season.
    The covers (marquee roof and walls) go back on and stay up from May to November every year.
    The marquee is on 6 acres of land adjoining my house.
    We only hold a maximum of 14 weddings per year.

    Question is, does this qualify as structure (with or without covers) immune from planning?
    If so, then can the 28 day PD be used without applying for change of use? Use of covers would be an issue I assume.

    Your (general) views would be appreciated and indeed I will be happy to pay for further advice in this regard.

  34. If ‘Saf’ would like to seek our professional advice, perhaps he would kindly send an email (as a correspondent’s contact details can’t be seen when they post a comment). We would need full details of the marquee and other relevant information, and should then be able to give ‘Saf’ clear advice as to legal position in this case.

  35. In the light of these discussions I am curious as to the implications of a floating dock which is on Poole Harbour, it is in seasonal use and is attached via chains back to the privately owned land of the user. An adjacent owner, I am assuming it may be a trespass as it floats partially on land owned by the harbour commissioners who have instructed removal of the structure (their description). Despite writing to the wrong person at the wrong address, after their,investigation ! Is this a structure ?

  36. In answer to the anonymous questioner of 20 March – “It depends.”

    I can’t go into this question any further, due to a potential conflict of interest that might potentially arise in this location.

  37. Hi Martin,

    It has been suggested to me by a neighbour that a conservatory, a “canopy” (effectively the structure of a conservatory with a roof but minus the walls) and a “modular garage” (???) are temporary structures and therefore there is no need to consider the GPDO restrictions on PD.

    Could I have your thoughts? This wasn’t my understanding of what constitutes “development”....


  38. Without knowing the full facts, I could not give a definitive answer to PsychoLawyer, but my instinct tells me that this amounts to development for the reasons explained in the above blog post.

  39. Hi Martin
    I have placed a small caravan on a small wood, just less than one acre, which is part of a larger wood , all different owners. I was told that as a store / shelter it does not need planning permission. Bromsgrove planning disagreed & told me to move it . I replied quoting wealdon dc v sos & colin day 7/12/87. stating that it was used for forestry, there was no change of use hence no development.

    I am awaiting their reply. What I need to know is am I right or do they have a case

  40. When owners of mobile home parks want to erect additional mobile homes, they require a change of use of the land instead of planning permission for the unit. Those units can then be moved around the site as or when needed. If I am reading this decision correctly, does it not follow that mobile homes could now be held to be 'development' rather than temporary structures, and their sites could arguably be used for permanent housing?

  41. In answer to Andrew James, the ramifications of the “Woolley Chickens” judgment have not yet been fully worked out. There is still a widely held view (not least among planning inspectors) that caravans are not to be regarded as structures. However, it seems to me that this view is now open to question in light of the “Woolley Chickens” judgment.

    I suspect that this point may not be finally resolved until or unless this issue returns to the High Court in a future case.

  42. In answer to John Morris (26 July), the Wealden judgment is, on the face of it, authority for the proposition that a caravan used purely for agricultural storage is not a building (by virtue of its being mobile, at least in theory), and provided its use is purely ancillary to the agricultural use of the land its stationing on the land does not constitute a material change of use.

    However, the “Woolley Chickens” case would appear to throw doubt on this proposition. So far as I am aware, Wealden has never been over-ruled as such, but it is difficult to reconcile it with the judicial observations made in the “Woolley Chickens” case.

    A similar problem arises in relation to a residential caravan, where the “Woolley Chickens” case would now appear to throw some doubt on the earlier judgment in Guildford RDC v Fortescue in 1959 and the Measor judgment of 1998.

    I fear that the current uncertainty will continue until the High Court is called upon to address this precise point, and to say definitely whether those earlier judgments have now been overtaken by the “Woolley Chickens” case, or whether this later case may perhaps have gone too far, so that Guildford, Measor and also Wealden are still good law.

  43. Our bowling club has recently applied retrospectively for permission for several shelters and a small shipping container used for secure storage for mowers & other equipment. The container has been on the site for approx 3.5 years. It is actually impossible to now remove it from the site now due to other shelters being constructed since. There is no intention to move the container as it would be impossible to do so. The Council are still taking the view it is a temporary structure and are indicating that the best they can do is grant a temporary consent. Given this case I would consider it a permanent structure - views?

  44. In the case to which my anonymous correspondent has referred this morning, I must respectfully disagree with the LPA. It seems to me, in light of the relevant judicial authorities (referred to by my correspondent), that the object in question is, by virtue of its having remained in place for a significant time, a permanent structure [i.e. a ‘building’]. I would regard it as entirely appropriate that a planning application should be made for the permanent retention of this structure. Furthermore, ministerial advice clearly recommends that a temporary permission should not be granted in such circumstances. Either a permanent permission should be granted, or the application should be refused.

    All the usual planning considerations would apply in the determination of this planning application, and so a grant of planning permission cannot automatically be expected.

  45. Hi Martin,

    In light of the recent discussion on caravans, I would appreciate your thoughts.

    Councils have been applying the principles of Woolley Chickens to fee calculations related to applications for caravan site/caravan parks, arguing that static caravans are in effect buildings in TCPA S336, thus the relevant floor space fee is required. The fee changes run in the tens of thousands for some caravan sites, which used to only have to pay a small change of use fee associated with making planning application. I started looking into this and your book and blog post above are very helpful.

    Having looked at Measor alongside 'Wyre Forest v Env Sec and Allens Caravans 1990', could the argument be that Woolley Chickens could not have amended the principles of Measor given it did not address special definition of caravans that is derived from the Caravans and Control of Development Act 1960, which must be adopted in the TCPA according to Wyre Forest? Your answer of 7th August 2018 seems to suggest this.

    Indeed, taking this further, if Woolley Chickens indicates static caravans fall within TCPA S336 buildings, surely then the 4 year immunity rule from S171B Section 2 would also apply as it shares the same definition? The lack of attention from Woolley Chickens to caravans seems to be require relevant then. Am I mistaken?

  46. In answer to NG (14 August), I am not sure that the House of Lords decision in Wyre Forest is of any real help in this context. That case was simply concerned with what constitutes a caravan so described in a planning application or planning permission. The answer to that question is that in that context the terms ‘caravan’ and ‘caravan site’ must be construed in accordance with the statutory definition in the 1960 Act (as extended by the 1968 Act).

    On the other hand, I think the case of Measor may be of greater help. This was specifically on the point that is in issue here, and as I pointed out earlier, this judgment has certainly not been over-ruled, although it is difficult to reconcile it with the “Woolley Chickens” judgment.

    It has clearly been accepted in the past that stationing a caravan on land, even for a long period, was a change of use of the land but did not constitute a building operation as such - hence the decisions in Wealden, and Measor. It may well be that the 1960 Act (and, in particular, Schedule 1) was framed on the same assumption.

    If a planning application is made for a change of use of land to use as a caravan site for touring caravans, it is clear that (except in respect of the provision of hardstandings, mains services, etc., if any) no building operations will be involved, in view of the comparatively brief stay of each touring caravan on the site. However, in the case of a site where ‘statics’ are intended to be stationed, either permanently or on a seasonal basis, those caravans (notwithstanding that they come within the definition of a ‘caravan’ within the 1960 and/or 1968 Act) might possibly, in light of the “Woolley Chickens” judgment, be seen as buildings, although a developer might well argue that the judgment in Measor is still good law so far as caravans are concerned. However, as I have made clear earlier, the effect (if any) that the “Woolley Chickens” judgment may have on this issue, as against the earlier caravan cases, does not yet seem to have been the subject of any judicial consideration.

    I can understand that, relying on the “Woolley Chickens” case, some LPAs might seek to apply the Fees Regs as if caravans are to be regarded as buildings, and I appreciate that this could lead to a demand for very substantial application fees in such cases. I can only suggest that the contrary view, relying on Measor, should be put forward to resist the demand for a substantial application fee based on a floorspace calculation. However, sooner or later, I fear that litigation on this issue will be unavoidable.

  47. Hi Martin,

    Thank you for the clarification.

    I have tried to raise the Measor point you mention, but the Council is refusing to engage. As they are, in effect judge and jury when it comes to validation, they did not want to discuss Measor, saying caravans are permanent structures if on site for more than 10 months. I've now discovered that someone else has already appealed a non-validation on the same fees point so we are awaiting the outcome of this.

    I would appreciate your thoughts on my second question, in that if caravans are by degree of permanence treated as buildings, does Woolley Chickens bring about the application of the 4-year rule for immunity if a conversion to residential take place? For example, in the case of a holiday static lived in as a permanent residential residence for four years (in breach of condition, etc)? Woolley Chickens may have further unintended consequences if so, and this time one which any Council would not like.


  48. If a caravan is stationed on land without planning permission with the intention that it should be a permanent structure and is to be used as a separate private dwelling, the Rule in Welwyn Hatfield would apply, so that it would be the 10-year rule (not the 4-year rule) that applies, because the 4-year rule applies only to the change of use of an existing building to use as a dwelling.

    If the caravan is unlawfully stationed on land, and stays there, so that it is to be treated as a building or structure [notwithstanding Measor], then its permanent presence on the land would become immune from enforcement after 4 years; but, as explained in Welwyn Hatfield, its use would not thereby become lawful, but would be subject to the 10-year rule.

    However, in the circumstances predicated by NG (occupation for permanent residence in breach of a condition in a planning permission that had authorised the stationing of the caravan on the land, for tourist use in this example), it would seem that the rule in Arun would apply, so that this change of use would become lawful after 4 years, notwithstanding that it is normally the 10-year rule that applies to breaches of condition.

    This would, of course, very much depend on the precise facts of the case, and would no doubt be strenuously resisted by the LPA, who would no doubt seek to rely on Measor (!) as authority for the proposition that a caravan is not and can never be regarded as a building, so that the 10-year rule would apply after all.

    Planners and developers (like the Devil) will “quote scripture to their own purpose” and are adept at citing whatever authorities seem to favour their case (although they should draw to the attention of the court or tribunal all relevant cases, whether in their favour or against them).

    Unfortunately, the courts all too often interpret the law so as to produce the “right” result (i.e. fair and just in the circumstances of the case, as they see it), without appreciating that this interpretation may have unintended knock-on effects when applied to different situations in future. This may to some extent explain the difficulty in reconciling the “Woolley Chickens” judgment with earlier cases such as Measor.

    Issues of this sort point up the difficulty of having two different immunity periods. It would make life much simpler for everyone (not least for LPAs, PINS and the Courts) if we were to adopt just one immunity period. I have previously suggested 6 years, which seems a fair compromise and also has the advantage of matching the most common [although not universal] limitation period in civil litigation.

  49. I just wish there was a clear cut definition of "Structure" and whether a car park would amount to this.

  50. As my anonymous correspondent of 27 September suggests, a clear statutory definition of “building or structure” would be very helpful.

    So far as a car park is concerned – a multi-storey car park is undoubtedly a building or structure. A purely surface car park would not be a building or structure, but laying it out would in most cases amount to an engineering operation, i.e. development that would require planning permission.

    Formation of a hard-standing (e.g. for car parking) might be permitted development in certain limited circumstances, but it would take too much time and space to explain those circumstances here.

  51. I asked a question the other day about the above appeal, and then found this - APP/W1850/W/18/3208401 which is useful and recent.



    1. For the benefit of readers who haven’t had time to look up the decision, this appeal turned out to be invalid, due to non-payment of the correct planning application fee. The Inspector nevertheless addressed the main issue, which concerned the presence on the site of two ‘safari tents’. Applying the well-known criteria originally established in Cardiff Rating Authority v Guest Keen Baldwin, the Inspector decided (as a matter of fact and degree) that these large tents amounted to structures, having regard to their size, physical attachment and permanence. Although this case is very much fact-dependent, it is a practical example of the application of the relevant legal principles in cases of this sort.