Nip tunnel problem in bud

Apr 30 2008 By Richard Freeman-Wallace for The Journal

POLYTUNNELS are proliferating in our rural landscape. A landmark planning case has had to decide whether they should be considered a “development” or a use of the land.

If classed as a building operation, polytunnels would require planning permission, but if they are classified as “use of the land for agriculture or forestry” then no planning permission would be necessary.

In Hall Hunter v First Secretary of State and others, the case concerned up to 148 acres (60 hectares) with walk-in polytunnels.

The judge focused on three factors – physical attachment, size and permanence – as the relevant points in deciding what constituted a building or structure.

In this instance, the height of the polytunnels was up to four metres, the length from 50 metres to 100 metres and the width up to eight metres. The area covered at any one time was up to 106 acres (43 ha) for three to seven months of the year. The legs were screwed into the ground to a depth of one metre.

The judge decided the polytunnels, of the size and construction chosen by Hall Hunter, were a development requiring planning permission.

He summed up his decision succinctly, saying: “When I asked what the 10-man team was doing if it was not, in ordinary language, erecting or constructing something … I did not receive a satisfactory answer.”

Hall Hunter put forward a second consideration, that even if the polytunnels were a development, they were permitted within the Town and Country Planning (General Permitted Development) Order 1995.

This allows for some temporary buildings and uses connected with operations carried out on, in, under or over the land. Hall Hunter argued that the term “operations” was not defined, so could be said to include farming operations. This was also rejected. The High Court decided “operation” was shorthand for operational development and did not apply to the use of land for farming.

For those farmers who have erected polytunnels without planning permission, this case is not clear-cut. Planning officers can take enforcement action to remove them.

However, the Government’s chief planner has advised that individual situations should be balanced against “the harm which has been, or may be, caused to local amenity. If there are no planning objections to the unauthorised polytunnel, there may be no need to take enforcement action merely to regularise the situation. The better course of action is to invite a retrospective planning application”.

This is, of course, advice which individual planning authorities may choose to ignore.

To confuse the picture further, there are a range of structures which do not require planning permission such as “low tunnels”, “French tunnels”, chicken houses, cloches, huts, hop poles and polythene sheeting for covering plants at ground level.

It is clear that the wise course of action, before putting up a polytunnel, is to seek guidance and speak to your local authority. It could nip a problem in the bud before it ripens under cover.

Richard Freeman-Wallace is a head of property at Watson Burton LLP.