Planning in a pandemic – the uncertainty surrounding temporary structures and uses

As businesses struggle to get to grips with the pandemic many are coming up with temporary solutions to facilitate customers whilst complying with their obligations to control the virus. Those using temporary structures or using additional land to comply with distancing however should be aware of the potential implications as well as other unintended consequences.

When is a structure a building? 

Many businesses are utilising temporary structures to keep operating whilst complying with social distancing. Whilst the intention may well be that these are temporary in some cases these could be considered a ‘building’ for planning purposes requiring planning permission.

What has been deemed a building for these purposes is wide and includes large umbrellas, cranes on tracks, marquees and many more which may not necessarily appear on their face to be permanent buildings.

Determining whether a particular structure is a building requiring planning permission is far from clear cut and often comes down to planning judgement on appeal. The case of Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions (No. 2) [2000] 3 WLUK 641 confirmed that this is assessed based on the size, permanence and degree of physical attachment to the ground. In some cases even where the structure isn’t considered a building it could still be treated as a building operation requiring permission. Care should therefore be taken and advice sought from the local planning authority when utilising these structures. 

What about the use? 

In most cases a temporary structure within the existing business boundaries, such as a pub garden, would not amount to a change of the use of the land. Where businesses are expanding onto previously unused land or land used for a different purpose however a change of use could be taking place requiring planning permission. 

Automatic permitted development rights exist for the temporary use of land for up to 28 days in a calendar year. This period has been expanded to 56 days as a result of the pandemic until 31 December 2020. Note however that this is not across the board and if the land is within the curtilage of a listed building this would not apply and in some other cases the number of days is reduced, such as for markets and motor racing. Advice should be taken before looking to utilise these rights. 

Adverse impacts

Often moving a use outside can result in adverse impacts on the area and temporary structures can be eyesores. In these cases complaints are often generated and action by a local authority is more likely. This can range from planning enforcement action if the structure or use is considered to be development resulting in costly appeals and fines to abatement notices and community protection notices due to noise impacts. Premises which have licences could also end up in a position where their licences are under review due to complaints or they are in breach of licence conditions so this should also be checked and borne in mind. 

Most local authorities are keen to support their local businesses. Engaging with the local authority will reduce the likelihood of these issues arising and ensure that your business continues to thrive. 

For advice on any of the matters discussed in this article please contact Nikki Fonseka or an alternative member of Birketts’ Planning and Environmental Team.