The court in R (on the application of McPhee) v South Downs National Park Authority (see PP 2015/132) held that the advice given in the committee report about whether or not the pig arcs required planning permission was legally flawed. It is important to consider the court’s reasoning in that regard.
Section 55(1) of the Town and Country Planning Act 1990 (“the Act”) provides that “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 use of any buildings or other land. However, section 55(2)(e) expressly states that the use (emphasis supplied ) 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 do not involve development of the land in question.
At an early stage in the planning application process, the local planning authority (“LPA”) expressed the view to the claimants’ solicitors that the pig farm did not require planning permission because “the use of the land for a pig farm falls within section 55(2)(e)” of the Act.
That was an incorrect understanding of the law. The LPA had failed to distinguish between (1) an activity carried on by a farmer that amounted to the use of his land for agricultural purposes and (2) an activity carried on by a farmer that amounted to operational development for agricultural purposes. (The latter falls within section 55(1) and so requires planning permission.) Subsequently, the LPA partially revised its view, but still concluded that it would only be necessary to consider whether the pig arcs required planning permission if they were moved from their then location to another location.
Section 336 of the Act provides that for the purposes of the Planning Acts “building” includes “any structure or erection”. Decided authorities establish that three primary factors are relevant to the question of what is a “building” in this context. They are size, permanence and degree of physical attachment. The suggestion in the committee report that, in addition to the threefold test of size, permanence and degree of physical attachment, there was a further test related to location was misconceived. The same could be said of the suggestion that the same structure could amount to development when sited in one location, but not development when sited in another.
John Martin is a planning law consultant
