QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF HALL HUNTER PARTNERSHIP||(CLAIMANT)|
|(1) FIRST SECRETARY OF STATE|
|(2) WAVERLEY BOROUGH COUNCIL|
|(3) TUESLEY FARM CAMPAIGN/RESIDENTS GROUP||(DEFENDANTS)|
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MR PAUL BROWN (instructed by the Treasury Solicitor) appeared on behalf of the 1St DEFENDANT
MR CHRISTOPHER KATOWSKI QC and MS ALISON OAKES (instructed by Waverley Borough Council) appeared on behalf of the 2ND DEFENDANT
MR GUY WILLIAMS (instructed by the Tuesley Residents Group) appeared on behalf of the 3RD DEFENDANT
Crown Copyright ©
"Approximately 40 hectares (99 acres) of polytunnels have been erected."
The grounds of challenge
"23. Essentially, they comprise a web of metal legs and hoops over which a plastic covering (described by some as polythene sheeting) is stretched and anchored with ropes. The metal legs are tubes, typically between 1.5m and 2.0m in length, with a screw-end to enable it to be wound into the ground and a 'Y'-shaped uppermost portion into which the hoops are slotted; thus, a single 'y'-shaped leg provides the support for the hoops of adjoining tunnels and linked blocks of tunnels several bays wide can be formed in this way.
24. Machinery is utilised to screw the legs into the ground between 0.6m and 1.0m in depth. Hoops are delivered in straight lengths and are bent into an arc on site by machine during the course of erection; diagonal and horizontal bracing bars are clamped to the legs and hoops of the first and some second bays. The main parties are agreed that the height of the tunnels, as formed, would vary, depending on the crop: 3.2m for strawberries and 3.7m for raspberries; generally, the maximum height would be up to 4m. The tunnels can vary in width between 6.5m and 8.0m and vary in length between 50m and 400m.
25. Mr M A Hall estimates that it takes 45 man-hours to fully-erect one acre and 32 man-hours to dismantle the same; in answer to my question, he indicated that teams of ten are engaged in these erection and dismantling processes."
29. Hence, in essence, polytunnels are erected on a greater or lesser number of blocks around the farm for nine months of the year; they cover different crops, at different times, for different periods. Thus, between any given times of the year, the particular extent of the farm covered in this way fluctuates.
30. However, on day 10 of the inquiry, in cross-examination, Mr H Hall indicated that in 2006, he anticipated between 34ha and 45ha would be covered at any one time, but he was unable to state the anticipated cumulative total. Nor was he willing to commit the appellant in 2006 and beyond in 2007 to the same hectarage covered in 2005 because the extent to which land would be utilised in this way would be directed by market-led forces."
"35. Section 57 of the 1990 Act (as amended) indicates that 'planning permission' is required for the carrying out of 'development' of 'land'. By s.336(1), 'land' includes a 'building', the definition of which '... includes any structure or erection...' The 1990 Act (as amended) contains no further definition of 'structure' and the term would need to be given its ordinary meaning; 'erection' (in relation to 'buildings') includes extension, alteration and re-erection. By s.171A(1)(a), the carrying out of 'development' without the required 'planning permission' constitutes a breach of planning control.
36. Section 55(1) defines 'development', for the purposes of the 1990 Act (as amended), as meaning '... the carrying out of building, engineering, mining or other operations in, on, over or under any land, or the making of any material change in the use of any buildings or other land'. By s.55(1A),'... building operations' includes - (a) demolition of buildings; (b) re-building; (c) structural alterations of or additions to buildings; and (d) other operations normally undertaken by a person carrying on business as a builder'.
37. However, s.55(2) adds that certain operations or uses of land shall not be taken for the purposes of the 1990 Act (as amended) to involve development of land including '... (e) the use of any land for the purposes of agriculture or forestry ... and the use for any of those purposes of any building occupied together with land so used;...'. Section 335(a) defines 'agriculture' as including ' ... horticulture, fruit growing, seed growing ...(and)... the use of land as ... market gardens and nursery grounds...'.
38. It is common ground between the main parties that Skerrits of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions and Harrow LBC (No.2)  2 PLR 102;  JPL 1025;  ECGS 43 provides valuable guidance in the interpretation of the meaning of 'development'. In that case, it was held that whether 'building operations' have occurred involves the application of a legal test.
39. That test is set out in Cardiff Rating Authority and Cardiff Assessment Committee v Guest Keen and Baldwin's Iron and Steel Co.Ltd  1 KB 385; three factors - size, permanence and degree of physical attachment - were relevant in deciding what was a building or structure. That was a case concerned with rating legislation, but its appropriateness to planning legislation was confirmed in Barvis Ltd v Secretary of State for the Environment  22 P&CR 710.
40. In Skerritts, Pill LJ approved the approach adopted by Bridge J in Barvis; the approach to the question of whether there had been a building operation was to consider, first, whether there was a building. If there was a building, applying the test set out in Cardiff Rating Authority, then what had created it was a building operation. The Courts have held that all of the circumstances have to be taken into account."
"48. My view is that, in terms of size, whilst there are limited variations in the height and width of an individual polytunnel, likely governed, in part, by the length and radius of the arc, clearly there is no fixed horizontal length. They are designed to accommodate the extent of the crop that requires to be protected and that, in turn, is regulated, at least in part, by the amount of land available in which the particular crop is grown. They can follow the topography of the ground.
49. The height and width of the polytunnels, together with whatever length an individual polytunnel might be, gives them volume and bulk; the fact that the component parts of one polytunnel are designed such that they can be linked to another, side-by-side, emphasises the solidity of appearance of the network thus formed.
50. The practice at this farm is to erect the polytunnels in such networks or blocks. Thus, for example, a notice displayed by the appellant in block No.7 indicated that, in that area alone, there were 24 polytunnels comprising a total length of 5,293m and amounting to coverage of 3.9ha. That, in itself, would be an entity of substantial extent. As a varying number of parcels are covered simultaneously, by any standard, the peak coverage of land of 39ha and the cumulative coverage of 60.8ha would be an enormous expanse of ground occupied by polytunnels.
51. It is not the case here that an individual polytunnel is so short in its length that, as a whole, it would be of an inconsequential scale. Applying the appellant's evidence of number of man-hours per-acre needed to erect the polytunnels, the time taken to erect, for example, those in block No.7, would be substantial; contrary to the appellant's belief and notwithstanding the team of persons employed, the task would be neither quick nor simple, serving to illustrate the scale of the work needed to provide the polytunnels.
52. Together, these factors indicate that, at Tuesley Farm, the polytunnels to which the notice is directed are, as a matter of fact and degree, of substantial size and proportion.
53. In respect of the degree of attachment, it might be the case that the screw-ended metal 'Y'-shaped legs are capable of being wound into the ground manually, but here, machines are used, not surprisingly so given the vast number of such legs needed. By this means, the polytunnels are affixed to the ground to a depth of up to 1m. It might be the case that the plastic sheeting and the legs themselves would be susceptible to storm damage, but equally there would be many forms of structures or erections that might also possess such vulnerability. As a matter of fact and degree, the polytunnels have a substantial degree of physical attachment to the ground which enables them to remain in place for whatever term is necessary to serve the purpose for which they are designed.
54. Turning to permanence, bearing in mind the method adopted at Tuesley Farm by which polytunnels are erected and subsequently dismantled and erected elsewhere, it would be the case that polytunnels would remain in one particular location from between three and seven months in any one year. Even the shortest of those periods would be of sufficient length of time to be of consequence in the planning context and more so in respect of longer periods. The provision of an individual polytunnel or a block in any particular area would have a date of commencement and reach a state of completion to perform the function for which it is designed; it might be further extended in the period that it exists, or reduced in size. But there is a finite span of time within which it is present before it is taken away.
55. They can be moved only by being taken-to-pieces, rather than being moved bodily. Once they are dismantled in this way, then bearing in mind the length of time, expressed by the appellant in man-hours per acre, taken to do so, that would be of sufficient scale, in itself, to amount to demolition and, by definition, a building operation. It may be the case, once dismantled, that there is no physical alteration to the character of the land itself. However, the subsequent erection of polytunnels on another block on the holding, even if the same materials are re-used, would be a separate act, to be considered independently against the question as to whether such act amounted to 'development'.
56. There is no evidence in the present case of the nature of the particular scheme or the factors taken into account by other local planning authorities against which they have made judgments on the question of 'development'. The Council's press release in May 2004 is unfortunate, but it goes on to say that '(t)he Council is monitoring the situation with the polytunnels at Tuesley Farm to establish the facts in this case...". Once it did so, it considered it expedient to issue Notice B and no claim is made that the Council was estopped in so doing. The definition contained in the CRoW Act 2000 is made for the specific purposes of that Act and would carry little weight in the interpretation of the 1990 Act (as amended).
57. Although there are noteworthy differences in the facts of the cases concerned in the appeal decisions in 1999 at New Barn Farm, Old Park Lane, Bosham in Chichester DC, the Inspector in those cases found that the polytunnels constituted operational development rather than a material change of use of the land (refs: T/APP/X/98/L3815/003017/P6; T/APP/L3815/C/98/1010638/P6).
58. The marquee in Skerrits was found not be a transient, ephemeral or fleeting - words that the Court believed would provide appropriate contrasts to the words permanence and permanent. Nor would the polytunnels in this case be transient, ephemeral or fleeting. Having regard to all of the circumstances of the present case and as a matter of fact and degree, the provision of polytunnels on land at Tuesley Farm, by reason of their size, permanence and degree of attachment to the land, is not a use of land, but comprises a building operation and hence 'development' within the meaning of the 1990 Act (as amended). The evidence of Mr H Hall would not lead to a different conclusion."
"The general range of things in view consists of things built or constructed. I think, in addition to coming within this general range, the things in question must, in relation to the hereditament, answer the description of buildings or structures, or, at all events, be in the nature of buildings or structures. That suggests built or constructed things of substantial size: I think of such size that they either have been in fact, or would normally be, built or constructed on the hereditament as opposed to being brought on to the hereditament ready made. It further suggests some degree of permanence in relation to the hereditament, i.e. things which once installed on the hereditament would normally remain in situ and would only be removed by a process amounting to pulling down or taking to pieces."
"Looking at these various sections it seems to me that the first half, 'operations', comprises activities which result in some physical alteration to the land, which has some degree of permanence to the land itself, whereas the second half, 'use', comprises activities which are done in, alongside or on the land but do not interfere with the actual physical characteristics of the land."
Mr Straker submitted that the erection of the polytunnels did not result in any physical alteration to the farm. Once they were removed, the land was in the same condition as it had been before they had been erected.
"The provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land.
A.1 Development is not permitted by Class A if—
(b) planning permission is required for those operations but is not granted or deemed to be granted.
A.2 Development is permitted by Class A subject to the conditions that, when the operations have been carried out—
(a) any building, structure, works, plant or machinery permitted by Class A shall be removed, and
(b) any adjoining land on which development permitted by Class A has been carried out shall, as soon as reasonably practicable, be reinstated to its condition before that development was carried out."
Class B permits:
"The use of any land for any purpose for not more than 28 days in total in any calendar year..."
subject to certain conditions which are not material for present purposes.
"The erection or construction on land in, on, over or under which operations, other than mining operations, are being or about to be carried out in pursuance of planning permission granted or deemed to be granted under Part III of the Act, or on adjoining land, of buildings, works, plant or machinery needed temporarily in connection with those operations, for the period of such operations."
"The respondent says, if I understand it, 'The terms of my continued user of the land involve that I shall be carrying out operations. Therefore, those are operations which are permitted and therefore under Class IV of Schedule I of the Order of 1950 I am entitled to put up these temporary buildings.' The answer made on behalf of the appellants is this: 'You simply have permission for the continued use of the land, and the continued use of that land does not involve, within the meaning of the Town and Country Planning Act, 1947, - whatever meaning it might have in ordinary language - operations, because the whole scheme of the Act is to distinguish between use of land and operations in or over land, and that is borne out by the definition of 'use' in section 119 of the Act [see now section 336(1) of the Act].' The definition is in the following terms.
'Use' in relation to land does not include the use of land by the carrying out of any building or other operations buildings thereon.
Therefore, say the appellants, when you were given temporary permission for the continued use of the land it excluded the operation of building and because it excluded that operation you cannot bring yourself within Class IV of Schedule 1 to the Order because you can do that only if the buildings are needed for permitted operations, and all you have is a permitted use. Therefore, since you cannot bring yourself within Class IV this building which you have erected has been erected without planning permission, and therefore you must pull it down. That is in effect what they said in the enforcement notice, and I think, without elaborating it any further, that that argument is clearly right, and therefore this appeal should be allowed."
Lord Goddard CJ and Hilbery J agreed.
"Lord Parker CJ said that the Minister had fallen into the mistake of treating Class IV(1) as concerned with the use of land, as opposed to building operations upon land. Class IV(2) related to uses: Class IV(1) related to operations ... Class IV(1) clearly had no application to the use of the site for the parking of vehicles or plant."
"78. By Class A of Part 5 of Schedule 2, permission is granted for '... the use of land ... as a caravan site in the circumstances referred to in paragraph A.2'. Such permission is subject to the condition set out in paragraph A.1 namely '... the use shall be discontinued when the circumstances specified in paragraph A.2 cease to exist and all caravans on the site shall be removed as soon as reasonably practical'. The circumstances mentioned in Class A, as set out in paragraph A.2, '... are those specified in paragraphs 2-10 of Schedule 1 to the [Caravans Sites and Control of Development Act 1960]'.
79. The Caravan Sites and Control of Development Act 1960 (as amended) (the '1960 Act') prohibits the use of land as a caravan site without a 'site licence', but no such licence is required for such use in the circumstances set out in the First Schedule to the 1960 Act. By paragraph 7 of the First Schedule, a 'site licence' would not be required for the '...use as a caravan site of agricultural land for the accommodation during a particular season of a person or persons employed in farming operations on land in the same operation'."
"Taken together, Class A of Part 5 of Schedule 2 to the GDPO and paragraph 7 of the First Schedule to the 1960 Act set out four criteria that all need to be met to attract the permission granted by the GPDO."
Mr Straker accepted that, in order for the caravan site to be permitted development, the claimant had to meet all four criteria.
"81. First, there is no dispute that Notice A is directed at the 'use as a caravan site of agricultural land for the accommodation ... of a person or persons employed in farming operations' and, as such, that use would meet the first criterion of Part 5 of Schedule 2.
The Inspector dealt with the second criterion as follows:
"82. Second, it is necessary to show that '... the use shall be discontinued ... and all caravans on the site shall be removed as soon as reasonably practical'. There is no dispute that in November or by early December 2004, all the caravans were removed from the site and stored elsewhere until they returned in February 2005. However, the infrastructure, comprising the pathways, the drainage, the electrical and water supplies serving the caravans, all remain in place throughout the year.
83. In Ramsey v Secretary of State for the Environment, Transport and the Regions and Suffolk Coastal DC  JPL 1123, it was held that the carrying out of operations on the land may in some cases be relevant on the issue of whether the proposed use was a temporary one, or was instead a permanent change of use of the land; the latter would arise if the operations make it difficult or impossible for the site to revert realistically to its previous normal use, such as agriculture, in between the occasions when the land is used for the new use.
84. The appellant maintains that in the winter period, the land remains available for other uses such as the parking of vehicles associated with the farm and the storage of agricultural equipment, although there is no clear evidence that such use has occurred to a material extent. Whilst it would not be impossible for it to be used for some agricultural purpose such as incidental parking or storage, it is clearly separated from the surrounding land by the earth bund and fencing with access limited to the group of farm buildings and care would be needed in such use to prevent damage to the infrastructure.
85. Realistically, for all intents and purposes, the land remains designed and fitted out for use as a caravan site and is occupied by caravans for a substantial part of any one year. It would not lose the characteristic of a caravan site merely because the caravans are removed for the time being. As a matter of fact and degree, the use as a caravan site would not be discontinued and the scheme would fail the second of the criteria of the GPDO permission."
"Third, it is necessary to show that the use as a caravan site of this agricultural land is '... for ... accommodation ... during a particular season."
"91. The nine-to-ten months during which the caravans are occupied would be distinctly different from that envisaged by the Courts embracing the period of hop-gathering or potato-picking. By any reasonable interpretation of the language, it would be too broad a period within a year to comprise a 'particular season'. Hence, the scheme would fail the third of the criteria of the GPDO permission."
Even if the references to "hop gathering" leave one with an impression of a vanished agricultural era, the Inspector's conclusion that, whatever "a particular season" means, it does not mean nine to ten months of the year, cannot be faulted.
"93. There is no dispute that persons accommodated at the caravan site at Tuesley Farm carry out agricultural work at other farms elsewhere in Surrey and Berkshire in which the appellant has an interest. Buses are used for transport."
He gave more details in paragraph 94:
"It is Mr H Hall's evidence that in the five months of April to August 2005, the number of people living at Tuesley Farm rose from 35 to 305, then contracted to 205, before rising again to 220 at the end of the period. On a day-to-day basis, the number of persons working elsewhere varied between two (on numerous occasions) and 210 (a single maximum), though some might also spend part of the same day working at Tuesley Farm. On some 11% of those days in that period, more of the persons housed at the caravan site worked elsewhere than at Tuesley Farm. However, overall, the percentage of daily working time of people living at Tuesley Farm and working at the farm was 83% and hence, the balance working at other farms was 17%. The appellant argues that these persons are employed at Tuesley Farm rather than at some other location, regardless that on occasions their work might take them elsewhere."
The Inspector concluded in paragraph 96:
"96. It would not be the case that the proportion of time spent elsewhere other than at Tuesley Farm, given as 17%, would be insignificant; as a matter of fact and degree, it would be of such quantity as to amount to a material factor."
(i) whether the scheme would amount to inappropriate development in the green belt, having particular reference to Structure Plan (SP) Policy LO4, Local Plan (LP) Policy C1 and national advice contained in PPG2;
(ii) the effect of the scheme on the character and appearance of the locality;
(iii) the effect of the scheme on the living conditions of nearby residents and on users of the local highway network; and
(iv) whether other material factors including benefits of the scheme exist that would clearly outweigh any harm arising from the above issues and thus justify the development."
"The extensive blocks of polytunnels would not meet the high standards of design and appearance that development plan policies seek of buildings in the countryside. The proposed development, together with the landscaping master plan, would be out of place in terms of their scale, height, form and appearance, failing to protect the openness and intrinsic qualities of the countryside and failing to respect its character, contrary to SP Policies LO4 and LO5 and LP Policies C1 and C3. Their presence would fail to conserve or enhance the quality of the landscape within the AGLV to its long-term detriment and, in that part of the appeals site outside the AGLV, would fail to retain the distinctiveness of the landscape, also to its long-term detriment, contrary to SP Policies SE4 and SE8 and LP Policies D1 and D4. The implementation of the more extensive scheme of polytunnels on all but two or three of the individually-numbered parcels, as put forward by Mr H Hall, would serve only to reinforce these objections [paragraph 142]".
"The proposed development together with the landscaping master plan would result in a loss of general amenity for nearby residents and highway users and also landscaping that would be unsuitable for the site and character of the area, all contrary to LP Policies D1 and D4. It would also harm the openness of the green belt, contrary to LP Policy C1, adding to the objections in terms of the first main issue[paragraph 152]."
"However, in the balance that has to be drawn between the needs of this agricultural enterprise and environmental impact arising from the presence of the polytunnels, I am firmly of the view that those agricultural needs would be far outweighed by the harm to the countryside arising out of the scale and appearance of the polytunnels. The increase in 2006 and beyond in the amount of land embraced by polytunnels, as postulated by Mr H Hall, would only serve to underpin my concerns about the unsuitability of the appeals site to accommodate this form of development. Nor would conditions imposed on the grant of planning permission be sufficient to overcome the harm arising from the continuing presence of the polytunnels [paragraph 162]."
"3.1 The general policies controlling development in the countryside apply with equal force in Green Belts but there is, in addition, a general presumption against inappropriate development within them. Such development should not be approved, except in very special circumstances..."
Absent that general presumption, the normal development plan policies and government policy guidance had to be applied. These included not merely the development plan policies in respect of the area of Great Landscape Value but also paragraph 3.15 of PPG2, which states that:
"The visual amenities of the Green Belt should not be injured by proposals for development within or conspicuous from the Green Belt which, although they would not prejudice the purposes of including land in Green Belts, might be visually detrimental by reason of their siting, materials or design."
"159. The use of the appeals site by the appellant for the production of soft fruit without, at first, clearly establishing, by the means available in Part VII of the 1990 Act (as amended), the lawfulness or otherwise of the polytunnels, is unfortunate and is to be set against the argument that the polytunnels would be essential to the successful production of soft fruit at the appeals site. The benefits of production adduced by the appellant are founded on unauthorised development more designed to meet the particular demands for crops grown under cover.
160. It is clear that the cessation of the use of the appeals site for soft fruit production under polytunnels would affect the interests of the appellant firm: But the appellant bought the farm as a viable agricultural unit and there would be no certainty that it could not be disposed of as such should that become necessary. Clearly there has been considerable capital investment in the enterprise, not least in the cost of the polytunnels. But again, there would be no certainty that some, if not all, of those costs would not be recouped. Moreover, there would be no certainty that the appellant firm would be unable to continue operating the other farms in which it has interests without the contribution from the appeals site."
"Tuesley Farm was sold to [the claimant] in 2003 and was sold as a viable agriculture unit. There is no evidence that if permission were not granted the farm could not be resold as a viable agricultural unit, being of a large size and with good quality soil. At the time of the sale other offers were made for the farm. Mr Aspury [a witness for the claimant] made clear that he was not saying that if permission was refused the farm would be lost to agriculture..."
In summary, the Inspector, as he was perfectly entitled to do, was accepting in paragraph 160 of his decision letter those submissions that had been made on behalf of the residents.