Brief analysis of the planning definition of building and its implications within the water industry in the UK

1. The Planning Definition of Building:
Implications to the Water Industry
Section 55(1) of The Town and Country Planning
Act 1990 (TCPA)1
defines ‘development’ as the
“carrying out of building, engineering, mining or
other operations in, on, over or under land, or the
making of any material change in the use of any
buildings or other land” and 'building' is defined in
section 336(1) as “any structure or erection, and
any part of a building, as so defined, but does not
include plant or machinery comprised in a building”.
Whether or not an activity amounts to development
is often a matter of fact and degree.
On the other hand, ‘operations’ are activities which
result in some physical alteration to the land having
some degree of permanence to the land itself
(Parkes v Secretary of State [1978]2
). Two statutory
definitions have therefore been given – the
definition of ‘building’ (s.336) and of ‘building
operations’ (s.551A).
The word 'building' has in this context a wider
meaning than is normally given to it in everyday
parlance. It will thus include other 'erections' which
may not normally be regarded as buildings.
The question as to whether an object or installation
is a building has long been an issue before the
Courts. The cases of Cheshire County Council v
Woodward [1962]3
and Barvis v Secretary of State
[1971]4
establish that a threefold test of (i) size; (ii)
fixity; and (iii) degree of permanence should be
applied. Further, a limited degree of motion does
not prevent something being a ‘building’; and a
thing is not necessarily removed from the category
of ‘building’ if it is brought onto the site in one piece.
However, according to Lord Parker in the
Woodward case,
“[…] the mere fact that something is erected in
the course of a building operation which is
affixed to the land does not determine the
matter. Equally, as it seems to me, the mere fact
that it can be moved and is not affixed does not
determine the matter[…] There is no one test;
you look at the erection, equipment, plant,
whatever it is, and ask: in all the circumstances
is it to be treated as part of the realty? So here,
one must look at the whole circumstances,
including what is undoubtedly extremely
1
The Town and Country Planning Act 1990 (c.8)
2
Parkes v Secretary of State and the Environment [1978]
1 WLR 1308
3
Cheshire County Council v. Woodward [1962] 2 QB 126
4
Barvis Ltd v. Secretary of State [1971] 22 P & CR 710
relevant, the degree of permanency with which it
is affected”.
In respect to the water industry, Part 16 and Part 17
(Class E) of Schedule 2 to the General Permitted
Development Order 1995 (GPDO)5
applies to water
and sewerage undertakers appointed in 1989 and
permits any development on operational land
(subject to certain limitations in size and height),
excluding new buildings but including building
extension or alteration of a building.
Section 1 of the GPDO explains that a building
“includes any structure or erection" but not "plant or
machinery". Sometimes Planning Authorities take
the view that the installation on operational land of
structures that a layperson would not normally
consider to be a building, such as a radio mast or a
solar panel, falls under the definition of building for
the purposes of the Order.
The definition of building in the GPDO slightly
differs from that given at s.336(1) of the TCPA. The
wording of the former and the use of the term
“includes” suggests that this definition is not
exhaustive and may be taken in its plain and
ordinary meaning (i.e. a structure with a roof and
walls)6
.
Otherwise we may find that any kind of structure or
erection (in all their broad meanings) on operational
land with a sense of permanence would fall under
the wider definition of building, thus requiring a
planning application. This would impose a heavy
burden on water companies ultimately hindering the
carrying out of their statutory functions, which is
contrary to the fundamental aims and purposes of
permitted development.
A legislative reform may not occur for several years,
and it is probably too late to include any
amendments in the Infrastructure Bill7
. In the
meantime, the publication of a long-awaited User
Guidance document (maybe in the form of a
Circular) as recommended in the 2003 review of the
GPDO by Nathaniel Lichfield & Partners8
would
provide both Planning Authorities and practitioners
with more certainty on its use and interpretation.
Sergio Perez
Environmental Scientist
Wessex Water Services Ltd
5
The Town and Country Planning (General Permitted
Development) Order 1995 (S.I. 1995 no. 418)
6
The Oxford English dictionary (3rd
Edition; July 1989)
7
Infrastructure Bill (HC Bill 124)
8
Nathaniel Lichfield & Partners; Review of Permitted
Development Rights (London, ODPM; Sept 2003)