Reasons to choose Wilson Browne
Under the Town and Country Planning Act 1990 (TCPA 1990), planning permission is required for the carrying out on land of any development (section 57(1), TCPA 1990).
Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of any buildings or other land” (section 55(1), TCPA 1990).
A cricket practice cage comprising six posts measuring 3.6 metres each, attached to the ground using concrete and covered with netting was erected in the rear garden of a dwelling. The local planning authority (LPA) issued an enforcement notice requiring the removal of the cage on the grounds that it was a “building” for planning purposes and therefore required planning permission.
Section 336 of the TCPA 1990 states that a building “includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building”.
The inspector, referring to case law, set out the three matters that need to be considered in determining whether or not a development is a “building”: its permanence; its physical attachment to the site; and whether or not it was constructed on site. No single matter is necessarily decisive, and a planning judgment should be reached on a fact and degree basis.
The inspector considered that the cage would have been assembled on-site, rather than having arrived in one piece. However, he noted, its posts were buried in the ground using concrete. Although the netting could be removed from the cage, the inspector considered that the structure as a whole was physically attached to the ground and the posts were permanently in place. He added that permanent in the context of planning control need not mean “everlasting”.
The inspector concluded that as a matter of fact and degree, the cage amounted to the erection of a structure and was therefore a building under section 336 of the TCPA 1990.
Due to the location of the cage adjacent to the boundary of the dwelling and the height of the poles, the development did not fall within class E, Part 1 of Schedule 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (SI 2015/596) and express planning permission from the LPA was required.
The appeal was dismissed and the enforcement notice upheld.