Wilsdon, R (on the application of) v First Secretary of State & Anor

Whether a building falls within Class A of Part 4 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 depends on all the relevant circumstances. Size, construction, the time taken to build the structure, and the period for which it has been or will be in place may be highly relevant. A permanent building may in principle serve a temporary purpose, but the larger and more permanent it is, the less likely it is to be genuinely required temporarily. The developer’s intention to remove it is relevant where the building’s permanent character requires explanation. The building must be reasonably required for the relevant operations, rather than merely desirable or convenient. Whether that test is met is a question of fact and degree.

The claimant appealed under section 289 of the Town and Country Planning Act 1990 against an inspector’s dismissal of his appeal against an enforcement notice. The notice required demolition of a substantial building and associated works constructed without planning permission. The claimant relied on ground (c), contending that the building was permitted development under Class A of Part 4 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 because it was required temporarily to store equipment and materials during an adjoining development. The central issues were the meaning of “required temporarily”, the relevance of the building’s permanent construction and the claimant’s intention to remove it, and whether the inspector had applied too high a threshold by referring to essentiality.

The appeal was dismissed. The claimant was ordered to pay the first respondent’s costs, summarily assessed at £5,000.

1. Construction of Class A. The question whether a building is required temporarily in connection with operations on the same or adjoining land must be determined by reference to all relevant circumstances. Its size and means of construction are highly relevant. The heading “Temporary Buildings and Uses” may also be considered when construing Class A.
2. Permanent construction and duration. A permanent building may in principle be erected for a temporary purpose. However, absent a satisfactory explanation, the larger and more permanent the structure, the less likely it is to be genuinely required temporarily. The time taken to construct it, and the period for which it has been or is likely to remain in place, are also relevant considerations.
3. Intention to remove. The claimant’s intentions were not irrelevant. Given the building’s substantial and permanent character, the inspector was entitled to examine whether the asserted intention to remove it after the adjoining works was realistic. The practicality of removal was relevant to whether the building was genuinely temporary in the statutory sense.
4. Meaning of “required”. The building had to be reasonably required, not merely desirable or convenient. Although the inspector referred to essentiality, the decision letter read as a whole showed that he had applied the correct substance of the test and had found, as a matter of fact and degree, that the building was not reasonably required.
5. The inspector had cogent reasons for rejecting the claimed security justification. The building therefore did not fall within Class A of Part 4 of Schedule 2.

The judgment describes an appeal under section 289 of the Town and Country Planning Act 1990 from an inspector’s decision dated 13 December 2005. The inspector had dismissed the claimant’s ground (c) appeal and upheld the enforcement notice.