When is a building not a “building” in planning?


Posted by Sadie Pitman, 18th June 2019
Planning permission is required for the “carrying out of any development on land” pursuant to section 57(1) of the Town and Country Planning Act 1990 (“the TCPA”), with the definition of “development” including the carrying out of “building operations”.

Case-law has shown us that in order to determine whether something constitutes building operations, one must determine:

  • whether there is a building, and
  • whether the erection of said building is a building operation

(Skerrits of Nottingham Limited v The Secretary of State for the Environment, Transport and the Regions, Harrow London Borough Council 2000 WL 389505). 

It is this first issue that has drawn so much attention in the Courts due to the wide definition of “building” in the TCPA, namely that it includes “any structure or erection” (section 336). Case law has therefore sought to quantify this.

In Cardiff Rating Authority and Cardiff Assessment Committee v Guest Keen and Baldwin’s Iron and Steel Co. Ltd [1949] 1 KB 485, three criteria were identified for a building:

  • size (with a building usually something that is constructed on site, rather than being brought on site already made);
  • permanence; and
  • physical attachment to the ground.

Following Cardiff Rating there has been a steady flow of cases examining these factors in order to determine whether or not a particular structure constitutes a “building”. Over the years the Courts have concluded that a myriad of structures (far removed from what would consider a building in the ordinary meaning of the word) are buildings in planning terms, from septic tanks to large umbrellas!

The Planning Inspectorate was tasked with considering this issue in two recent appeals, which both add to our understanding of what is capable of being a “building“.

  • The first appeal related to a cricket practice cage that consisted of six posts of 3.6 metres in height covered with netting. The Inspector determined that from the evidence the posts were intended to be permanent and, even if there was the potential to remove the netting, as a whole the structure was a permanent addition. Moreover, the posts were buried in the ground with concrete which ensured that at least the substantive part of the cage was physically attached to the ground. The Inspector also determined that the nature of the cricket facility implied that it was constructed on site, concluding that it was therefore a “building”. (Appeal reference: APP/M0655/C/18/3206121).
  • The second appeal concerned a shelter for a practice tee at a golf club, measuring 10 metres in width and 4 metres in height. The shelter was portable, light weight and had some open sides. Despite this, the Inspector focused on the fact that the shelter was fixed to the ground and therefore had a degree of permanency; concluding that the shelter did constitute a “building” in planning terms. (Appeal Reference: APP/N4720/W/18/3216727). 

If you are thinking of introducing some sort of structure onto your land, even if it does not resemble a building in the conventional meaning of the word, it may be one in the eyes of the law. It will be necessary to examine the structure in light of the Cardiff Rating factors in order to determine whether or not you need to apply for planning permission.

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