This article was first published in Farmers Guardian in March 2022 as part of a media partnership.
For generations farmers have been masters at multitasking – making, doing and mending, re-purposing and inventing new buildings long before upcycling became a buzzword.
But Fenella Collins, Head of Planning at the CLA, warns an ever-increasing number of farmers and land managers are getting caught out. She says: “Time and time again we see farmers who have spent a lot of money on what they think will pass as a non-permanent building and they end up in a long and protracted planning wrangle. It is far better to check or seek advice before making any investment.
“A good example in case law is some large chicken sheds on skids, [foundations] with 1,000 hens in each. Yes, they were not fixed to the ground, but they needed to be pulled by a tractor to be moved, which the courts decided made them permanent.
“The law is getting more murky, just having skids on is not a fail-safe that something is ‘temporary’.
“A temporary structure is by definition not attached to the ground, so that calls into question polytunnels and glamping tents that have poles driven into the land beneath them. Time is also relevant. Take for example pig arcs, which are being moved around all the time, but what about something that is up all summer? Three or four months could be construed as permanent."
Tactics: why temporary structures can be useful
Trying out a new business diversification is one of the most obvious reasons for needing a temporary structure. If a new livestock venture, such as poultry or pigs, is successful, the decision can be made to invest in new purpose-built housing.
Likewise, a tourism diversification; if a temporary glamping tent proves profitable, the farm might go on to invest in a permanent building such as a holiday lodge. Temporary structures keep the initial outlay lower than a permanent building.
Another interesting area is a building which may at first glance appear temporary, like a shepherd’s hut, but when you look at it closer a concrete base has been put in, along with the ground dug up for electricity and water.
“The shepherd’s hut itself may not require planning permission, but the groundworks certainly do. Also, does it need more than one man to move it – is something temporary if it needs a team to move it?” In Fenella’s experience, enforcement officers are alerted to breaches of planning law through a variety of ways.
“Traditionally, the rural community can have the attitude of keep quiet and hope for the best,” she says.
“But all it takes is for somebody to be walking along a public right of way which passes a new building and take a photograph and it can become a time-consuming and expensive mistake.”
To help farmers going forwards, there is a whole raft of information and advice available about planning requirements for temporary buildings which ultimately can save a lot of time, effort and money.
Fenella says: “Too often farmers and managers only get in touch when they are in trouble with the planning authority. It is so much better to ask for advice before bringing in any kind of temporary building.
“Ignorance is not bliss. ‘We did not know we needed planning permission’ does not wash as an excuse with local authorities. The onus is on the farmer to make sure they are complying with planning law.”
Temporary buildings: beauty or beast?
Jonathan Thompson, CLA Senior Heritage Adviser, says planning officers often seem ‘much more frightened’ of temporary structures than permanent ones. This can make it very difficult to get planning permission for temporary structures, especially (but not only) near listed buildings or Areas of Outstanding Natural Beauty or Sites of Special Scientific Interest.
Jonathan says: “There seems to be a prejudice against them; an assumption that they will almost always be somehow dangerous or inappropriate. The viability case for them is often strong in planning policy terms, but is very often ignored. Farmers should not bury their heads in the sand and hope nobody will notice new temporary buildings.
“Doing this can waste an awful lot of time, energy and money. If you just ring up the planning department and ask if you will need permission, the likelihood is they will automatically say yes. It is far better to be armed with the facts first.”
After lobbying from the CLA, Historic England issued new guidance in 2010 that ‘there should not be a presumption against temporary structures simply because they are visible in the historic environment’, which is a complete reversal of previous policy and has improved the odds of obtaining permission significantly. Jonathan says: “However, it is essential you quote this guidance, as it is our experience that it is often ignored.”
Case study: polytunnels
In 2006 there was a court case relating to Spanish-style polytunnels for soft fruit production. The courts ruled they are buildings requiring planning permission because of their size and the amount of man hours needed to erect them. Permanence was also a factor, with the polytunnels remaining in place for between three and seven months in any one year. Even the shortest of these periods, three months, was ‘sufficient to be of consequence for planning purposes’. Degree of attachment was another concern, with the tunnels’ metal legs screwed into the ground using machinery to a depth of up to one metre, which the inspector ruled was a ‘substantial degree of physical attachment to the ground’.
CLA advice on temporary buildings
The CLA’s professionally qualified advisers have the expertise to provide impartial advice on all the matters which will need to be considered if you are thinking about using temporary structures in your business. This will include advice on whether permitted development rights are the correct approach by considering the various conditions and limitations which must be complied with. On the other hand, if it is considered that planning permission is required, advice will be provided on the various material planning considerations which will need to be taken into account to achieve a successful outcome.
Questions to ask
- Do I need planning permission? Planning permission is needed for any ‘development’, meaning a ‘building or engineering operation’ or a ‘material change of use’. This usually depends on ‘scale’, ‘permanence’ and ‘degree of attachment to the ground’. A marquee for a wedding is unlikely to be ‘development’, but big polytunnels (even if removed every year) probably are.
- If it is ‘development’, is it ‘permitted development’? The General Permitted Development Order 2015 (1995 in Wales) allows ‘moveable structures’ for up to 28 days a year, outside the curtilage of a building.
- If it is ‘development’ and not ‘permitted development’, will you need to make a planning application? Many local planning authorities are inclined to refuse applications for temporary structures, so this needs careful handling, possibly by a specialist consultant. l What if planning permission was needed but I do not have it? The local authority might just ask for a retrospective planning application, but can (and often will) take enforcement action. This could potentially be a big problem if you have crops growing in polytunnels or bookings for glamping or weddings.