Skerritts Of Nottingham Limited v Secretary of State for the Environment, Transport and the Regions & Anor

Whether an object is a building for planning purposes is a question of fact and degree. Relevant considerations include its size, permanence and degree of physical attachment to the land.

Permanence is flexible and must be assessed in the context and according to the purposes of planning control. It does not require continuous presence throughout the year, nor an intention that the object remain for ever or indefinitely. Regular annual dismantling therefore does not necessarily prevent a substantial structure from being a building.

Where an object is properly classified as a building, its erection is capable of constituting a building operation and therefore development under section 55(1) of the Town and Country Planning Act 1990.

A substantial marquee was erected in the grounds of a listed hotel without planning permission. It remained on the land for about eight months each year and was then dismantled. The local planning authority served an enforcement notice alleging development without permission.

On the landowner's appeal, the Secretary of State's inspector found that the marquee's dimensions, character and anchorage made it a building for planning purposes. Its erection was therefore a building operation constituting development under section 55(1) of the Town and Country Planning Act 1990.

A Deputy High Court Judge allowed the landowner's statutory appeal. He held that the inspector had applied an erroneous conception of permanence. The Secretary of State appealed. The central question was whether the inspector had applied the correct legal test when deciding that the annually dismantled marquee was a building.

1. The appeal was allowed unanimously. The inspector applied the correct legal test and was entitled to find that the marquee was a building. Its erection consequently amounted to a building operation constituting development under section 55(1) of the Town and Country Planning Act 1990.

2. Per Schiemann LJ, the classification of an object as a building is a matter of judgment for the planning authority and, on appeal, the Secretary of State. The object must be considered in its planning context. The inspector properly assessed the marquee's ample dimensions, substantial assembly process, recurring eight-month presence, solid character and secure anchorage.

3. The Deputy High Court Judge wrongly treated Denning LJ's description of permanence in Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co Ltd [1949] 1 KB 385 as binding in the planning context. That description arose under materially different rating legislation. Permanence is not a statutory expression and does not have an invariant meaning. In planning law, the relevant question is whether the object remains for a sufficient period to be significant in the planning context.

4. Per Pill LJ, the applicable three-fold inquiry considers size, permanence and degree of physical attachment. Those considerations overlap. Permanence contains an element of flexibility: it may involve only some degree of permanence, an object may normally remain in situ, and its removal may require dismantling. The annual removal of the marquee did not deprive it of permanence. Permanence does not require presence on every day of the year.

5. Per Morritt LJ, permanence is a matter of degree between the temporary and the everlasting. It does not depend on the erector's intention and does not require continuation for ever or indefinitely. Schedule 2 Part 4 to the Town and Country Planning (General Permitted Development) Order 1995 itself demonstrates that a building may be sufficiently permanent to engage planning control while remaining temporary for the purposes of permitted development.

6. The Deputy High Court Judge's decision was reversed. The appeal was allowed with costs, subject to detailed legal aid assessment.

1. Court of Appeal (Civil Division): The Secretary of State's appeal was allowed unanimously. The Deputy High Court Judge's decision was reversed, and the inspector's conclusion that the marquee constituted development was upheld.

2. High Court, Queen's Bench Division: Mr Malcolm Spence QC, sitting as a Deputy High Court Judge, allowed the landowner's appeal because he considered that the inspector had applied an erroneous test of permanence.

3. Secretary of State's inspector: The landowner's appeal against the enforcement notice failed. The inspector found that the marquee was a building and that its erection constituted development under section 55(1) of the Town and Country Planning Act 1990.