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3.0 CASE LAW REVIEW
The courts have had little opportunity to debate the GPDO. If there is a dispute over the existence of PDR, it is generally cheaper and quicker to apply for planning permission. Legal action is therefore unlikely other than in situations where any application for planning permission is likely to be refused, thereby making the existence or otherwise of the PDR a key issue.
This review includes a number of relevant cases previously summarized in Blackhall J C 22 and Moore V. 23
Curtilage
The phrase "curtilage" appears in several parts of the GPDO (for example, Part 1 Development within the curtilage of a dwellinghouse; part 2 sundry minor operations; part 4 temporary buildings and uses).
The meaning of this phrase has been the subject of legal debate (See Watchman and Young "The meaning of curtilage" 1990 SLT 77; for example, Skerritts of Nottingham Ltd v Secretary of State [2001] QB 59).
Improvement
In Cowen v Peak District National Park Authority (2000)( JPL 171; 3 PLR 108) the Court of Appeal held that the meaning of "improvement", in the case of repairs to unadopted streets and private ways, was contextually conditioned. Whether the construction of a hard surface was "improvement" within the meaning of permitted development was not a matter for the subjective opinion of the person undertaking the improvement, but rather it was a matter of fact and degree. The ordinary meaning of "improvement" was limited to changes which do not alter the basic character of that which is improved. The permitted works in question could only affect the surface and foundations of the way and not widen or alter its route.
Operational land
Before any land acquired by statutory undertakers can be regarded as operational, there must be specific planning permission for its development for the purpose of the undertaking. In Adur District Council v Secretary of State (1999)( JPL B99; PLCR 295), the issue was whether the status was activated by a temporary planning permission, which the Court confirmed that it did. However, the Court went on to say that this did not mean that statutory undertakers enjoyed full PDR to use the land in question. In addition to a condition of permission requiring the temporary use to cease at the end of the period, a second condition required that "notwithstanding the GPDO, the site shall be used solely for the storage of cars". The Court held that this condition remained effective beyond the period of the temporary planning permission, thus preventing the exercise of PDR.
Temporary buildings and uses
Permission for the temporary use of land for a specified period in the GPDO (eg 28 days) raises the question of when the temporary period commences. The Court of Appeal in AG's reference No 1 (1996)( EGCS 164) was asked to rule on the effect of an enforcement action which was intended to restrict a landowner to the permitted extent of his temporary use rights in terms of shooting for a period of up to 28 days in any calendar year. The notice took effect during a calendar year, and the question was whether, in calculating the 28 days, the Court should include 4 days for which the land had already been used for shooting. The Court reaffirmed that, for the purposes of the GPDO, a calendar year runs from 1 st January to 31 st December, and that any shooting days occurring before the date specified for compliance with the notice should be taken into account in calculating compliance with the 28 day limit.
In Ramsey v Secretary of State (1997)( JPL B122), the issue arose of distinguishing between a genuinely temporary use of land or that intended as a permanent change. The case involved use of land for vehicular sports and leisure activities. Whilst the activities themselves were restricted to 14 days per year, the physical attributes of the site (tyres embedded in the ground, pits and mounds used as a vehicle obstacle course) indicated all the attributes of a permanent use of the land, and therefore fell outside the PDR granted by the GPDO.
Owners of land may seek to extend their temporary use of land by moving the activity to another piece of land on expiry of the maximum period for temporary use. The Courts are likely to regard such movements as unreasonable exploitation of rights under Part 4 of the GPDO and the planning unit, which will normally be the whole unit in the same occupation.
In Fitzpatrick v Secretary of State (1988)( JPL 564, 1 PLR 8) it was held that a car boot sale could be described as a market, and thus restricted to 14 days per year. In Spook Erection v Secretary of State (1988)( JPL 821), the fact that the market in question was held under a market franchise granted by the Crown did not extend Crown immunity from planning control.
In South Bucks DC v Secretary of State for the Environment (1989)( JPL 351), the Court of Appeal held that the effect of Part 4 was to grant as many planning permissions as there were changes of use, so that where land was used for a weekly Sunday market, a change of use occurred every time the market was held. This enables the planning authority to issue an Article 4 Direction withdrawing the PDR, even when the landowner has begun to use but not exhausted the temporary planning permission. In effect, the provision does not grant a single permission for temporary use of land in each calendar year, but allows the landowner to make up to 28 changes of use for the same activity on each of the days permitted in any calendar year.
Formation of a vehicular access
Class 8 permits the formation, laying out and construction of a means of access to an unclassified road, where access is required in connection with development permitted by any Class of the GPDO except Class 7 (erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure). In Shepherd v Secretary of State for the Environment and Three Rivers DC (1997)( JPL 764), the High Court held that the equivalent Class B in the English GPDO 1995 was not confined to the formation of a means of access to a highway which was adjacent to the land on which the permitted development was to take place, but that the right was available even when there was intervening land.
Agricultural buildings and operations (Part 6)
The courts have held that "agricultural use" includes grazing horses (but not where the horses are kept for recreational purposes), allotments, fox farming, mink farming, fish farming, and the making and selling of wine made from grapes grown on the land, but not the breeding and training of horses for show jumping, the keeping and boarding of dogs, the establishment of a cheese making business, or the use of worms to turn droppings from intensively bred rabbits into compost (Rowan Robinson "Scottish Planning Law and Procedure 2001 para 5.144 et seq).
The development rights permitted by Class 18 of Part 6 apply only to building operations "requisite for the purposes of agriculture within that unit". Those works must be reasonably necessary for the purposes of agriculture within the unit ( MacPherson v Secretary of State for Scotland 1985 SLT 134).
In Clarke v Secretary of State for the Environment (1992)(65P& CR85) it was held that, to qualify as permitted development, the buildings did not have to be "reasonably necessary" (the words in the equivalent Class A of Part 6 of the English GPDO 1995) for the particular agricultural enterprise being undertaken on the unit at the time the buildings were erected. On the contrary, they simply have to be reasonably necessary for, and designed for, the purposes of agriculture within that unit. It is a question of fact and degree, to be decided with regard to the circumstances prevailing at the time when the building was erected.
For a building to be permitted, it has to be designed for the purposes of agriculture. This relates to its physical appearance and layout. In Harding v Secretary of State for the Environment (1984)( JPL 503) it was said that design related to appearance rather than function "to ensure that buildings in the countryside should look like farm buildings and not dwelling houses". Development under Class 18 is not permitted if it involves the provision of accommodation for livestock, or the storage of slurry and sewage sludge within 400 metres of the curtilage of a "protected building". The purpose is to maintain a "cordon sanitaire" between such accommodation and nearby residential accommodation.
Forestry buildings and operations (Part 7)
Class 22 applies to specified works and operations "for the purposes of forestry". Forestry use includes operations necessary to render timber marketable and disposable, even where the operations are carried on some distance from the plantation. Therefore planning permission was not required for a change of use to use as a timber storage and transfer area ( Farleyer Estate v Secretary of State for Scotland 1992 SLT 476).
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