Factual and Procedural Background
The dispute concerns the erection of a marquee on the grounds of a hotel, which is a listed building, without planning permission. The landowner contended that planning permission was not required, whereas the local planning authority disagreed and issued an Enforcement Notice alleging development without permission. The key issue was whether the erection of the marquee constituted "development" under the Town and Country Planning Act 1990.
The landowner appealed to the Secretary of State, who, through an inspector, found that the erection did amount to development. The landowner then appealed to the High Court, where a Deputy High Court Judge allowed the appeal. The Secretary of State subsequently appealed to the Court of Appeal.
Legal Issues Presented
- Whether the erection of the marquee constituted "development" within the meaning of section 55(1) of the Town and Country Planning Act 1990.
- Whether the marquee should be regarded as a "building" for planning purposes, considering factors such as size, permanence, and physical attachment to the land.
- The correct legal test to apply in determining permanence and whether the inspector applied an impermissible test in reaching his conclusion.
Arguments of the Parties
Appellant's Arguments (Secretary of State)
- The inspector applied the correct test regarding whether the marquee was a building and thus constituted development.
- Permanence is a flexible concept forming part of a broader judgment about whether a structure amounts to a building or erection.
- The marquee’s presence on site for approximately eight months annually was sufficient permanence to qualify as a building for planning purposes.
- The judge erred in holding that he was bound by the rating case dicta of Denning LJ concerning permanence, as those dicta were not binding in the planning context.
Respondent's Arguments (Landowner)
- The marquee did not have the requisite permanence to be considered a building because it was removed for part of each year.
- The inspector incorrectly focused on the marquee's character while it was in place rather than its overall permanence, leading to a flawed conclusion.
- The judge correctly found that the inspector applied an impermissible test by conflating character with permanence.
- The historical pattern of removal meant the marquee should not be classified as a building for planning control purposes.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Cardiff Rating Authority v Guest Keen Baldwin Iron and Steel Co Ltd [1949] 1 KB 385 |
Definition of "building" considering size, permanence, and physical attachment; originally in the context of rating legislation. |
Used as a guiding test for determining whether a structure is a building within planning law, with flexibility regarding permanence. |
| Cheshire County Council v Woodward [1962] 2 QB 126 |
Consideration of whether movable machinery on land constitutes development under planning legislation. |
Confirmed that mobility alone does not preclude development; overall circumstances must be considered. |
| Barvis Ltd v Secretary of State for the Environment [1971] 22 P & CR 710 |
Clarification that erection of a structure (e.g., crane) can amount to development; permanence and attachment are relevant factors. |
Endorsed the approach that if an erection is a building, its construction is a building operation amounting to development. |
| R v Swansea County Council ex parte Elitestone Limited [1993] 2 PLR 65 |
Consideration of whether chalets were buildings for planning purposes; permanence is a highly material factor. |
Supported the view that permanence is an important but not exclusive factor in classifying structures as buildings. |
Court's Reasoning and Analysis
The Court began by examining the statutory definition of "development" under section 55(1) of the Town and Country Planning Act 1990, which broadly includes building operations. It acknowledged the wide scope of this definition and the existence of statutory provisions addressing temporary structures and uses.
The inspector had found the marquee to be a building based on its substantial size, permanence, and physical attachment to the land, applying the three-fold test derived from Cardiff Rating Authority, despite that case originating in rating law.
The Deputy High Court Judge criticized the inspector’s approach, holding that the inspector erred by focusing on the marquee's character while in place rather than its permanence, citing that the marquee’s annual removal meant it lacked the necessary permanence to be a building.
The Court of Appeal disagreed with the Deputy Judge’s strict interpretation of permanence as requiring an indefinite or permanent presence. It held that permanence is a flexible concept, qualified by the phrases "some degree" and "normally remain in situ," allowing for temporary removal if the structure remains for a significant period relevant to planning control.
The Court emphasized that the inspector applied an appropriate legal test, considering size, permanence, and physical attachment, and that the inspector’s conclusion that the marquee constituted a building was defensible. It rejected the argument that the inspector was bound by the dicta from rating cases, clarifying that while such cases provide useful guidance, they are not determinative in planning law.
Ultimately, the Court found that the marquee’s annual presence for approximately eight months was sufficient permanence to constitute a building for planning purposes, and that the erection of the marquee amounted to development without planning permission.
Holding and Implications
The appeal is allowed.
The Court reversed the High Court’s decision, holding that the erection of the marquee constituted a building operation amounting to development under the Town and Country Planning Act 1990. The marquee’s annual presence for a substantial part of the year satisfied the permanence requirement in the planning context, notwithstanding its seasonal removal. The decision affirms that permanence is a flexible concept and that temporary removal does not necessarily negate the status of a structure as a building for planning control purposes.
The ruling directly affects the parties by upholding the Enforcement Notice and confirming that planning permission was required. No new precedent was established beyond the application of existing principles to the facts of this case.