3 Planning Permission and Development Control

(a) Definition of ‘Development’

12.19 Planning permission will be required for any ‘development’ on agricultural land. Development is widely defined to include ‘the carrying out of any 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’.³⁴ Building operations that will require planning permission also include the demolition of buildings, rebuilding, or alterations to buildings and ‘any other operations normally undertaken by a person carrying on business as a builder’.³⁵

12.20 How are ‘building operations’ to be defined? The general rule, until challenged recently,³⁶ was that merely placing an existing structure on agricultural land would not constitute a building operation requiring permission.

12.21 Notwithstanding this approach, recent decisions have resulted in an expansion of the scope and meaning of ‘development’ for planning purposes, and with it the range and scope of development control over agricultural operations. The difficulty of determining the parameters of development control in projects involving the use temporary structures for intensive agriculture was illustrated in R (on the application of Hall Hunter Partnership) v Secretary of State.⁴⁰ The development here involved the erection of Spanish polytunnels to grow soft fruit intensively during the growing season, typically between February and November each year. In 2004 45.6 hectares of the farm was covered in polytunnels at different times. In 2005 this increased to a cumulative total of 60 hectares, with peak coverage of 39 hectares at any one time. The business employed 230 seasonal workers, who were housed in 45 caravans – each fitted out with gas and electricity supply, a bathroom and water. The Council served two enforcement notices – one alleging a change of use from agriculture to the stationing of caravans without planning permission, and the other alleging that the erection of the polytunnels was development requiring planning permission. The planning inspector turned down appeals against the enforcement notices.

12.22 The primary question for the court was whether the erection of the polytunnels should be regarded as building operations requiring planning permission. None had been obtained, so, if the answer was ‘yes’, the enforcement notice must be upheld. The planning legislation gives little guidance on defining building operations. In the leading case of Skerrits of Nottingham Ltd v Secretary of State (No.2) the Court of Appeal had reviewed earlier cases and held that in order to assess whether an activity constitutes a ‘building operation’ the court will ask itself, in the first instance, whether it will produce a ‘building’, in other words a structure of the requisite permanence.⁴¹ If it does, then the operations required to produce it will be building operations and will require planning permission.

12.23 When considering the necessary degree of permanence for a structure to be considered a ‘building’, two separate elements must be addressed: (i) does the structure have the required degree of physical attachment to the ground to be regarded as permanent? This is a matter of fact and degree for the planning inspector; and (ii) does the structure have the requisite degree of permanence in temporal terms, in other words is it to remain in situ for a sufficient period of time to be a permanent structure on the land? In the Hall Hunter case the planning inspector found that it took a team of 10 men 45 man hours to erect one acre of polytunnels, and a further 32 man hours to dismantle them. Machines were required to screw the metal posts used to anchor the frames into the ground, and to bend the metal frames into arcs to create the hoops over which plastic was then affixed. It was estimated that one 4-hectare block had taken over 430-man hours work to assemble and over 300 to dismantle. The polytunnels therefore had a substantial degree of physical attachment to the ground.

12.24 As regards the second element, the degree of permanence in temporal terms, the polytunnels were moved regularly and stayed in the same place for between three and seven months each. It was established in the Skerrits case that, to be regarded in legal terms as ‘permanent’, a structure does not have to remain in the same place indefinitely: in that case a marquee was held to be a building for planning purposes, even though it could be taken down at anytime and moved. More precisely, Schiemann LJ said that, in order for there to be a sufficient degree of permanence to regard a structure as a building, it must be sited on land ‘for a sufficient length of time to be of significance in the planning context’.⁴² The planning inspector was, accordingly, entitled in Hall Hunter to regard the shortest period for which the polytunnels were so sited (3 months each) as satisfying this test, and he had not incorrectly applied the required legal test.

12.25 A second argument – that the use of polytunnels was now the norm for soft fruit production and should therefore come within the exemption from planning control in the 1990 Act⁴³ – was also rejected. Operational development on farms is also in many cases given permitted development rights. The erection of polytunnels does not, however, qualify for General Development Order rights.⁴⁴ The court in Hall Hunter stressed that, if changes in agricultural practice mean that new types of agricultural building are required, the solution is for Parliament to alter the General Development Order to permit their erection subject to appropriate conditions. Changes in agricultural practice do not in themselves bring new kinds of development within the agricultural use exemption in the 1990 Act if they involve new buildings or other operational development. An attempt in this case to invoke permitted development rights under Part 4 of Sch 2 to the General Development Order, which gives deemed permission for temporary buildings and land uses, also failed for the same reason. The placing of caravans in large numbers on the land was also held to be operational development requiring planning consent

12.26 It has also become clear from recent decisions that European Union law can have a significant effect on the interpretation – and scope – of ‘development’ for the purposes of the planning legislation.⁴⁵ This is especially relevant in cases where Environmental Impact Assessment has to be considered. In R (on the application of Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council⁴⁶ it was held that the definition of development should be interpreted broadly by planning authorities so as to include, wherever possible, projects which require EIA under the EU’s Environmental Impact Assessment Directive.⁴⁷ In that case it was held that the installation of mobile poultry units assembled on site and positioned on metal skids that allowed them to be moved could constitute building or ‘other operations’ requiring planning permission.

12.27 Finally it should also be noted that the term ‘operations’ has a technical meaning in the planning law context, where it is used as a term of art in the planning legislation to denote any activity which results in some physical alteration to the land itself, and which has some degree of permanence.⁵⁰ This is to be compared with the looser usage of the concept in, for example, conservation legislation such as the Wildlife and Countryside Act 1981. Many agricultural practices of a passive nature, such as grazing stock or releasing fertilisers or herbicides onto land, will not constitute ‘operations’ requiring planning permission. They may, however, be validly classified as proscribed ‘operations’⁵¹ under the terms of an SSSI designation affecting the land, as the term carries a wider meaning under the 1981 Act.⁵²

(b) Agricultural User – Exemption from Development Control

12.28 By virtue of s 55(2)(e) of the 1990 Act ‘the use of any land for the purposes of agriculture or forestry... and the use for any of those purposes of any building occupied together with land so used’ does not constitute development, and does not require planning permission.

12.29 It has already been noted that placing an existing structure on agricultural land can in some circumstances constitute a building operation requiring permission.⁵⁵ If the structure does not have the requisite degree of permanence, then it will not be a building operation and will not require planning permission. Furthermore, if its intended user is agricultural, there will be no material change of use and planning permission will again not be needed.⁵⁶ So, for instance, the placing of a residential caravan on agricultural land, for the purpose of providing a weather-proof store and mixing place for cattle food will not constitute ‘development’ and will not require planning permission.⁵⁷ The placing of an object or structure on farmland will only be outside planning control, however, if its siting and intended user is ancillary to the agricultural use of the relevant planning unit, which latter may encompass several parcels of land and not simply the site on which the structure is placed.⁵⁸ Spreading agricultural waste on land will not involve development, even if the waste is from an unconnected holding, as it is ancillary to the agricultural use of the land. In this context effluent from a mushroom farm has, for instance, been held to constitute ‘agricultural waste’ when used as a fertiliser. Consequently, spreading waste of this kind will not constitute development as it is ancillary to the use of the land for agriculture and within s 55(2)(e).⁵⁹

12.30 Where there is a change of user from one agricultural use to another, the question whether it is a ‘material’ change of use is irrelevant – planning permission is not required, irrespective of the aesthetic merits of the changed agricultural use.⁶⁰ Where a change has taken place from a non agricultural to an agricultural use, without the need for planning permission, then any subsequent reverter to non agricultural use of the land or buildings will require permission – even though the supplanting use (agriculture) is not ‘development’ within the meaning of the 1990 Act.⁶¹ This will be the case even if the original non-agricultural use was lawful, providing that use has been completely supplanted by the subsequent agricultural use.⁶²

(c) Material change of use

12.31 Even if no building or other operations are involved, planning permission will still be required if there is a ‘material change of use’ of existing land or buildings etc. The change must, however, be from an agricultural to a non-agricultural use if planning permission is to be required. A material change of use can occur when the primary agricultural use of the land changes or, alternatively, where there is a change in the ancillary uses to which the land or buildings are put. If the ancillary uses to which land and / or buildings are put: (i) cease to be agricultural; and (ii) cease to be ‘ancillary’ to the primary agricultural user, then planning permission may be required. For the purpose of deciding whether a change of use which is ‘material’ has occurred, regard must be had to the existing user of the planning unit viz. the whole of the area which was used for a particular purpose or activities ancillary thereto. Activities which are truly incidental to the farming of a holding will not involve a material change of use, and will not require planning permission, eg the sale of home grown produce, even if on a large scale.⁶³

12.32 If an ancillary business or activity is not ‘agricultural’ within the meaning of the planning legislation (as to which see below) a material change of use requiring permission may have occurred. So, for instance, the creation on a holding of a ‘lairage’, for the transport and storage, prior to export, of livestock from other farms, has been held to be a development requiring planning permission.⁶⁴ Cf. the conversion of buildings for such use for the purpose of exporting stock from the subject holding alone would probably not amount to a material change of use. Similarly, selling farm produce grown other than on the subject holding may constitute a material change of use requiring planning permission, as it is not an activity ancillary to the conduct of agriculture on the subject holding itself.⁶⁵ The sale of farm produce per se is a retail use, and not agricultural, and can only be exempted from planning control if truly incidental to the conduct of agriculture on the relevant planning unit. Moreover, a material change of use can occur if any amount (however small) of fruit or produce grown elsewhere is brought in for sale, if this changes the character of the use of the planning unit – unless the change is truly de minimis.⁶⁶ So, in Allen v Secretary of State and Reigate and Banstead DC⁶⁷ a material change of use was found where only 8% of the plants and shrubs sold from a farm shop were not grown on the premises. In another case a change of use was found where as little as 5.5% of produce sold was brought in for sale from elsewhere⁶⁸. The growing on of plants germinated elsewhere will, however, amount to ‘horticulture’ – an agricultural use in its own right, and not therefore involving a material change of use. Where additional plants are brought in for immediate sale, on the other hand, their sale is not ancillary to the horticultural use of the holding, and will require permission.

12.33 An intensification of an existing land use can also, in some circumstances, amount to a material change of use. To do so, however, the intensification of the pre-existing use must have resulted in ‘a material change in the definable character of the use of the land’.⁶⁹ If the land use that is intensified is itself agricultural in nature (as to which see further below), then any intensification will not in itself necessarily involve a material change of use.⁷⁰ The position may be more complex if the land use that is intensified is non-agricultural and benefits from an existing planning permission. Alternatively, it may be alleged that an existing agricultural use has been changed where the intensification results in the development ceasing to be ancillary to the overall agricultural use of the planning unit. So, in Reed v Secretary of State⁷¹ it was alleged that a material change of use requiring planning consent had taken place where one static and one mobile caravan had been positioned on farmland, but then later replaced with two of each plus one storage container and a utility block. Planning permission had been granted in 2007 for one caravan, to be occupied by a gypsy family. The planning inspector’s decision upholding an enforcement notice was set aside by the court of appeal, who stressed that the correct test to ascertain whether there had been a ‘material’ change of use was whether the increased number of caravans had resulted in a change in the definable character of the land in question. If the predominant use of the land remains ancillary to the agricultural use of the planning unit then there will not be a material change of use. This is a question of fact for the planning authority or planning inspector to decide on the merits of each case.

12.34 Planning Unit: For the purpose of deciding whether a change of use is ‘material’ regard must be had to the pre-existing user of the Planning Unit, as compared with its user as changed. Where a change in the ancillary uses of land or buildings on a farm is complained of, the planning authority are entitled to look at the whole of the area previously used for agricultural purposes, to compare it with its current user.

12.35 What the local authority are entitled to look at is the whole of the area which was used for a particular purpose including any part of that area whose use was incidental to, or ancillary to, the achievement of that purpose.⁷²

12.36 So, for example, where retail sale is complained of the whole of the nursery gardens and buildings are the proper planning unit to be assessed when deciding whether there has been a material change of use.⁷³

12.37 An ancillary agricultural use can also lose its protection if the primary user of the holding ceases to be agricultural. This is a question of fact and degree.⁷⁴ Ancillary activities are only protected if they themselves are agricultural in nature and, further, incidental to a primary user of the holding/planning unit which is itself agricultural. In practice the question often resolves itself into the extent to which an activity can truly be said to be ‘ancillary’ to some other principal use. So, for example, in Pittman et al v Secretary of State for the Environment.⁷⁵ an agricultural holding was divided into plots and sold. The plots were occupied as ‘leisure’ plots with stationary caravans in situ and mains facilities, and some subsidiary livestock husbandry was carried on. The husbandry was, on the facts, held to be ancillary to a new principal user – providing leisure and holiday facilities – and this resulted in a material change of use of the land from its former agricultural use. Ultimately, whether there has been a ‘material’ change of use is a question of fact and degree to be decided on the facts of each individual case.⁷⁶

(d) ‘Land’ defined

12.38 Land is defined by s 336(1) to mean ‘any corporeal heriditament, including a building’. Taken with s 55(2)(e), it follows that planning permission is not required to put any existing building to agricultural use, whatever its design, appearance or present use.⁷⁷ Note, also, that s 55(2)(e) itself permits the use for agriculture not only of land, but of ‘any building occupied with land so used’. It is not unlikely that this provision was intended to cover cases where there is an agricultural unit with a building which is not actually within the unit, but is occupied with the land so used eg a nearby farm cottage.⁷⁸

(e) ‘Agriculture’ defined

12.39 By virtue of s 336(1), ‘agriculture’ is defined to include horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins, or fur, or for the purpose of its use in farming the land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes. Only use that is agricultural, within the extended meaning given by s 336(1), will be exempt from planning control. The definition is similar, but not identical, to the parallel provisions in the Agricultural Holdings Act 1986⁷⁹ and Rent (Agriculture) Act 1976⁸⁰ eg ‘livestock’ within s 336(1) would clearly include fish, thus exempting the mere use of land or buildings for fish farming. Fish are, however, not ‘livestock’ within the meaning of the Rent (Agriculture) Act 1976, and a worker employed in fish farming may not, therefore, enjoy the protection of the tied cottage legislation. Although decisions on the parallel definitions in the 1976 and 1986 Acts are not of authority, they may be of assistance.⁸¹ The definition in s 336(1) is inclusive in nature, and not exhaustive – some common agricultural practices, such as arable farming, are not expressly included. Although the definition will extend to cognate agricultural activities, however, the constituent parts of the definition cannot be expanded by reference to their ordinary and natural meaning, irrespective of the agricultural context. So, for instance, the term ‘livestock’ is limited to animals normally kept for the production of food etc., and will not include the keeping of cats, dogs or even racehorses.⁸² Guidance on the construction of inclusive definitions of this type was given in Hemens v Whitsbury Farm and Stud Ltd.⁸³ The following features of the definition should also be noted:

(i) Breeding and keeping of livestock

12.40 ‘Livestock’ is defined as including any ‘creature’ kept for the production of food etc., and would include fish.⁸⁴ Semble, however, it would not encompass the raising of fish for ornamental purposes or restocking. It has also been held, for the purposes of the tied cottage legislation,⁸⁵ that pheasants and other game birds raised for sporting purposes are not ‘livestock’.⁸⁶ Racehorses, similarly, cannot be regarded as livestock⁸⁷, although foxes kept for the production of skins and fur may be.⁸⁸

(ii) Grazing land

12.41 The use of land as grazing land is, in itself, an ‘agricultural’ user within the meaning of s 336(1), even if the animals grazed are not livestock. It will not suffice to turn animals onto the land for the occasional ‘snack’ of grass; they must be turned onto the land with a view to feeding them from the land.⁸⁹ Land, for planning purposes, includes buildings, and buildings used solely for purposes ancillary to grazing will be within the definition of agriculture.⁹⁰ Land and buildings used solely for the purpose of keeping animals (such as racehorses), and not for grazing, are not used thereby for agriculture.⁹¹

(iii)Horticulture

12.42 The use of land to grow shrubs and flowering plants will not constitute development. Similarly, the sale of home grown plants and shrubs will not constitute development necessitating permission, as it is ancillary to the primary agricultural use of the land. This will be the case even if there is the sale of a very large proportion of the holdings produce from the premises – it remains a user ancillary to the principal agricultural use of the land and buildings. So, for example, in Allen v Secretary of State and Reigate and Banstead BC⁹² the establishment of a farm shop, in which over 90% of the plants and shrubs sold, were grown on the holding was not ‘development’ necessitating planning consent. Difficulties can arise where some produce is brought in and sold, alongside home grown produce. Nevertheless, it has been held that bringing on plants and cuttings brought in from elsewhere amounts to ‘horticulture’, and hence agriculture, and that their subsequent sale will not constitute retail use necessitating planning consent. The relevant issue is what is done to the plants after they are brought in, and not the length of time they are kept prior to sale. Plants brought in solely for the purpose of their immediate sale, however, have no connection with the use of the land for horticulture, and their retail sale will not be ancillary to the horticultural use of the holding.⁹³

(iv)Recreational use

12.43 For the agricultural user exemption to apply it is not necessary that agricultural user be for the purposes of a trade or business cf. under the Agricultural Holdings Act 1986 use for the purpose of a trade or business is a prerequisite for protection⁹⁴ Recreational use of an agricultural nature will suffice. So, for instance, grazing ponies kept for recreational purposes will not require planning permission – the mere keeping of racehorses or ponies will, however. Cf. for development rights under the General Permitted Development Order 2015 to apply, however, the user must be in connection with a trade or business.⁹⁵