Whether the Planning Acts apply to the erection of polytunnels, is question that has long vexed many in the farming community; not to mention those employed in local Planning Enforcement Departments across the country. This position has not been helped by the inconsistent approach taken by different local authorities.
In the matter of Hall Hunter Partnership v First Secretary of State (and others) (2006), the Claimant appealed against the decision of the planning inspector, that the polytunnels erected by the Claimant were sufficiently substantial and permanent to require planning consent. The High Court held that the inspector was entitled on the available evidence, to conclude that the polytunnels were sufficiently permanent to require planning consent. This decision was met with not a little dismay in rural communities. It set in more ‘solid stone’ the principal that planning consent is required for polytunnels, other than those that are clearly of a very temporary or insubstantial nature in terms of their size or construction.
In a letter to all local chief planning officers dated 25th July 2007, Paul Hudson, Chief Planner within the Department for Communities and Local Government provided guidance upon how the government would prefer the various Planning Acts to be applied to the construction of polytunnels. While the overall affect of the letter may be to restore the previous position of uncertainty, the sentiment of the letter should not necessarily be unwelcome to those in the farming industry.
The letter, (click here for copy), suggests that two main questions should be considered before enforcement action is taken:
1. Does the polytunnel constitute development within the meaning provided by planning legislation?
In considering whether a polytunnel constitutes ‘development’, the planning authority will need to consider:
i. the type and scale of the polytunnels;
ii. the degree of permanence with which the polytunnels are constructed and affixed to the ground, (but please note that in the Hall Hunter case the Court held that even polytunnels which were not erected year round were capable of having a sufficient degree of permanence to require planning consent).
and
2. Can the ‘development’ fall within the statutory exceptions known as the permitted development?
Paul Hudson suggests that in recognition of the valuable role played by the farming communities, planners should try to deal with polytunnels leniently. They should therefore consider whether planning legislation provides any exception that will permit the development. For example, the General Permitted Development Order 1995 allows operators of an agricultural unit exceeding 5 hectares, to erect a building which is reasonably necessary for the purposes of agricultural within that agricultural unit. There are however several restrictions:
i. only 1 ‘building’ can be erected at a time;
ii. the ‘building should not exceed 465 sq metres; and
iii. ‘buildings’ erected under this exception may not be nearer to each other than 90 metres.
There is therefore a reasonable chance that the erection of a number of polytunnels will still fall foul of the development permitted by the General Permitted Development Order 1995.
Nevertheless, Paul Hudson went on to suggest that the key issue in deciding whether to take enforcement action should be the extent to which the ‘development harms the local amenity. Therefore, provided no local objection is raised, retrospective planning applications should be encouraged and pre-consent infringements should be dealt with leniently.
It is important to emphasis that the guidance provided by Paul Hudson is informal. While it perhaps restores a position of uncertainty about whether planning consent is required for any given development of polytunnels, it is refreshing to note that the informal guidance suggests that the application of the Planning Acts to polytunnels should be dealt with with a degree of lenience where possible.
Should you require any further advice or assistance, please do not hesitate to call Paul Rice on 01926 880777 or James Leyland on 01926 883013
