Development Control

AuthorWilliam Webster

Chapter 4

Development Control


4.1 The basis of development control is that planning permission is required for the carrying out of any development of land.1 The term ‘development’2means:

(a) the carrying out of:

(i) building,3

1TCPA 1990, s 57(1). This section lays out the basis for development control.

2TCPA 1999, s 55.

3The term ‘building operations’ is defined in TCPA 1990, s 55(1A) as including: (a) the demolition of buildings; (b) rebuilding; (c) structural alterations or additions to buildings; and (d) any other operations normally undertaken by a person carrying on business as a builder (it is clear that this definition will include almost any substantial work on land – the test is whether the physical character of the land is altered (Cheshire CC v Woodward [1962] 2 QB 126)). Clearly, issues of size (see Buckinghamshire County Council v Callingham [1952] 1 All ER 1166 – where an enforcement notice requiring the removal of a model village was upheld); degree of permanence (see Measor v Secretary of State for the Environment, Transport and Regions [1998] 4 PLR 93 – where the court held that the stationing of 18 mobile and touring caravans for residential use did not constitute ‘buildings on the ground that they lacked the degree of permanence and attachment to constitute buildings’); and physical attachment to the site (see Tewkesbury Borough Council v Keeley [2004] EWHC 2594 (QB) – where it was held that sheds on wheels did not constitute buildings) will be crucial. Clearly, if a structure is not a building, then there could be no building operation in relation to it. See also Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and Regions (No 2) [2000] 2 PLR 102, where the erection and siting of a large marquee in the grounds of an hotel for nine months of the year was found to constitute development, as was the erection of substantial polytunnels for growing fruit in R (Hall Hunter Partnership) v First Secretary of State [2006] EWHC 2482 (Admin). The term ‘building’ is defined in s 336(1) as including ‘any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building’. This is a wide definition and would include structures which would not ordinarily be described as buildings, but as chattels, such as the heavy, but movable, poultry units in R (Save Woolley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin).

82 Planning Law: A Practitioner’s Handbook

(ii) engineering,4

(iii) mining or other operations,5

in, on, over or under land (which is described as ‘operational development’);6or
(b) making any material change in the use of any buildings or other land. Where development is carried out in breach of planning control, it is unlawful and may be the subject of enforcement action by the local planning authority (LPA).7

4.2 Planning law is therefore concerned with either: (a) operational development, or (b) making a material change of use of any building or other land. The former is concerned with the physical alteration of the land, whereas the latter is concerned with activity taking place on the land, but which does not alter its physical characteristics.8In some cases they overlap, as where a building is to be erected or converted for the purposes of an entirely new use.9Further,

4The term ‘engineering operations’ will include the formation or laying out of means of access to highways (s 336(1)) and will no doubt also cover works which are designed by and/or supervised by civil or traffic engineers (see Fayrewood Fish Farms Ltd v Secretary of State for the Environment [1984] JPL 267).

5The term ‘other operations’ is not to be treated as eiusdem generis with the operations which precede this expression, even if (doubtfully) there was a class or genus to such operations (Coleshill and District Investment Co Ltd v Minister of Housing and Local Government [1969] 2 All ER 525) and is therefore not limited to building, engineering or mining operations. It was, for instance, found to be wide enough to include other significant operations affecting land, such as the placement of the movable poultry units in R (Save Woolley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin), or the removal of topsoil.

6Beronstone Ltd v First Secretary of State [2006] EWHC 2391 (Admin), where a local authority issued an enforcement notice in a case where, within the Green Belt and an AONB, 554 wooden posts had been laid out so as to define the boundaries of 40 plots of land and a network of accessways, without planning permission. The inspector, having taken account of the extent, visibility, grid-like patterns and degree of permanence of the posts, found that they had a detrimental effect on the land and were of sufficient substance, scale and type to amount to ‘development’ within the meaning of TCPA 1990, s 55, and the enforcement notice was accordingly upheld. The court upheld the inspector’s decision, holding that the issue of development was one of fact and degree based on the individual circumstances of the case. The term ‘development’ in TCPA 1990, s 55 will also include the formation and laying out of means of access to highways and will no doubt cover works which are designed by and/or supervised by civil or traffic engineers (see Fayrewood Fish Farms Ltd v Secretary of State for the Environment [1984] JPL 267).

7TCPA 1990, s 172. The county planning authority may also be an appropriate authority to issue an enforcement notice in its capacity of mineral planning authority (Sch 1, paras 1 and 11).

8Parkes v Secretary of State for the Environment [1979] 1 All ER 211 at 213.

9Reference should be made to TCPA 1990, s 75(2) and (3), which provides that a planning permission may (in the terms of the grant or as a condition) specify the purpose for which a new building may be used (or even exclude the operation of the Town and Country Planning (Use Classes) Order 1987 (SI 1987/764) (as amended) (Use Classes Order 1987) or restrict future use

Development Control 83

development projects may be large enough to involve more than one operation or use which cannot reasonably be regarded as being ancillary to the other and which may well require separate consents.10


4.3 There are exceptions to the system such that certain operations or uses will not be taken to involve development of the land, in which case no planning permission is required. For instance, works of maintenance, improvement or other alteration of any building which affect only the interior of the building or which do not materially affect the external appearance of a building, will not constitute development.11

in a case where planning permission may not even be required), but if it does not, then it is implied that the building may be used for the purpose for which it is ‘designed’ which, for these purposes, means was intended as reflected by the terms of the application and any terms of limitation contained in the grant such that a change to any other use (provided it constitutes development within the meaning of s 55) would require permission. See Wilson v West Sussex County Council [1963] 2 QB 764; East Suffolk County Council v Secretary of State for the Environment (1972) 70 LGR 595; Kwik Save Discount Group Ltd v Secretary of State for Wales [1981] JPL 198 at 201–202; Harding v Secretary of State for the Environment [1984] JPL 503; Barnett v Secretary of State for Communities and Local Government [2010] 1 P & CR 8; Peel Land and Property Investments Plc v Hyndburn Borough Council [2013] EWCA Civ 1680.

10In West Bowers Farm Products v Essex County Council (1985) 50 P & CR 368, a development involving the extraction of minerals on a substantial scale in the course of engineering operations on agricultural land involved two activities and could not be described solely as engineering operations for the purposes of agriculture. This meant that the claimants were unable to rely on permitted development rights, but as operations for those purposes and partly of working and winning minerals. See also R v Durham City Council ex parte Lowther [2002] P & CR 22; R (Edwards) v Environment Agency (No 2) [2006] EWCA Civ 877 (affirmed by the House of Lords in [2008] UKHL 22).

11TCPA 1990, s 55(2)(a); although planning permission will be required: (a) for increases of floor space of more than 200 square metres where the building is used for the retail sale of goods other than hot food (s 55(2A)); (b) where the building is a listed building (LBA 1990, s 9); or (c) in the case of internal works which are part and parcel of, or integral to, a material change of use, for which planning permission is required (Somak Travel Ltd v Secretary of State for the Environment [1987] JPL 630). The impact of works which may affect the external appearance of a building is a subjective one, and the exemption was made out in Kensington and Chelsea Royal London Borough Council v CG Hotels (1980) 41 P & CR 40, where the work involved in installing floodlights in the basement area and on the first floor balconies of an hotel was not an operation amounting to development. In Burroughs Day v Bristol City Council [1996] 1 PLR 78, the court held that to materially affect the external appearance of a building, the alterations had to be judged by reference to the building as a whole. The test was not whether the works merely affected the exterior of the building, but whether they materially affected its ‘external appearance’. In this case, the roof alterations were not visible from any of the surrounding streets, and the court held

84 Planning Law: A Practitioner’s Handbook

4.4 It...

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