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Development Control

Document Cited authorities 61 Cited in Related
AuthorWilliam Webster/Robert Weatherley
Pages381-396
Chapter 40Development Control

BASIS OF DEVELOPMENT CONTROL

40.1 The basis of development control is that planning permission is required for the carrying out of any development of land.1The term ‘development’ means:
(a) the carrying out of building,2engineering,3mining or other operations4in, on, over or under land (which is termed as ‘operational development’);5or (b) making

1TCPA 1990, s 57(1).

2The 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. 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 9 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 Wooley Action Group Ltd) v Bath and East Somerset Council [2012] EWHC 2161 (Admin).

3The term ‘engineering operations’ is not defined in the TCPA 1990, but is liable to mean an operation which would generally be supervised by an engineer.

4The term ‘other operations’ is not to be treated as ejusdem 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 vMinister 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 Wooley Action Group Ltd) v Bath and East Somerset Council [2012] EWHC 2161 (Admin), or the removal of topsoil.

5Beronstone 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

382 Restrictions on the Use of Land

any material change in the use of any buildings or other land.6Where development is carried out in breach of planning control, it is unlawful and may be the subject of enforcement action by the LPA.7

40.2 Planning law is therefore concerned with either: (a) operational development (i.e. building, engineering, mining and other operations in, on, over or under land); or (b) making a material change of use of any building or land. In other words, the former is concerned with physical alteration of the land and 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, 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

40.3 There are, however, 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 alterations which affect only the interior of a building or which do not materially affect the external appearance of a building will not


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.

6TCPA 1990, s 55, where the meaning of ‘development’ is defined in s 336, but is nonetheless stated to include the formation and laying out of means of access to highways. The term 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 as 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) (Use Classes Order 1987) or restrict future use 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).

constitute development.11It should, however, be noted that deemed permission is granted for: (a) works of enlargement, improvement or other alteration of a dwelling-house (subject to certain limitations);12(b) for other specified building operations including works reasonably necessary for the purposes of agriculture within an agricultural unit;13and (c) for non-domestic alterations or extensions, etc (again subject to specified limitations).14

40.4 Other exceptions to development (and the need for planning permission) include:

(a) the carrying out of road maintenance by the Highway Authority;15

(b) works by local authorities or statutory undertakers in connection with sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land;16

(c) the use of any buildings or other land within the curtilage of a dwelling-house for any purpose incidental to the enjoyment of the dwelling-house;17

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...

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