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High Court rules over polytunnel scheme

A High Court judgement has backed a local planning authority's stance that a large-scale polytunnel installation on a farm in Surrey constitutes development and requires planning permission. A soft-fruit grower failed to persuade Mr Justice Sullivan that the polytunnels on Green Belt land within a designated area of great landscape value (AGLV) - represented agricultural use of land and did not need permission. The farm can be seen from the nearby Surrey Hills Area of Outstanding Natural Beauty (AONB).

The Hall Hunter Partnership, which owns Tuesley Farm, near Godalming, went to court after losing an appeal against an enforcement notice from Waverley Borough Council, upheld by a planning inspector, which had ordered the removal of polytunnels, windbreaks and caravans for up to 250 workers.

In making his decision, the planning inspector was clear he was looking at the circumstances of this individual case and that it would not mean that all applications for polytunnels would need to be considered for planning permission.

"This decision is based on local circumstances and doesn't set a national precedent. Farmers will continue to enjoy preferential treatment under the planning system," he said.

Countryside campaigners hailed the ruling as a victory for local democracy and a blow against what many see as the "industrialisation" of farming. However, farmers and fruit growers have warned that a 200m a year industry is threatened by the judgement.

Large-scale polytunnel installations have already caused controversy in other parts of England, notably in Gloucestershire, Kent, Herefordshire and Worcestershire.

Councillor Patrick Haveron, Waverely council's lead member for planning, said: "Waverley is the first council in the country to determine that such polytunnels are development and do require planning permission.

"It is essential that the council, as planning authority, works hard to balance the varying interests of agriculture with those of local residents and the impact on the landscape."

He added: "We have been aware throughout of the national interest in this case and it will be a useful case for planners elsewhere because it establishes that polytunnels of the type involved in this decision do require planning permission."

The Campaign to Protect Rural England welcomed the judgement as "a crucial victory for the planning system which will ensure that local democracy and national policy are properly taken into account when polytunnels are proposed on farmland, and in particular on nationally and locally designated landscapes."

 

The following is an extract of a a case reported in 'Planning' Magazine on 10th December 2004. The full case can be downloaded from www.PlanningResource.co.uk

Polytunnels held to be breach of planning control

Enforcement action directed against two growing tunnels at a garden centre in the Norfolk Coast area of outstanding natural beauty has been upheld after an Inspector found that they were building operations with no permitted development rights.
The Inspector accepted that polytunnels are often regarded as ancillary to agricultural or horticultural use because of their transitory nature. He found it necessary to establish whether the tunnels involved a building operation within the meaning of development under Section 55(1) of the Town & Country Planning Act 1990. If they were, he reasoned, they would not be exempt under section 55(2)(e), which permits the use of buildings for horticultural purposes, because this applies to existing rather than new buildings.

The Inspector referred to Barvis Ltd v Secretary of State for the Environment [1971], Cardiff Rating Authority v Guest Keen Baldwin's Iron and Steel Co Ltd [1949] and Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and the Regions [2000]. These cases established three primary factors in assessing what constitutes a "building" : size, permanence and physical attachment to the land.

The Inspector found that the polytunnels were substantial structures, being nearly 40m long, more that 8m wide and around 3m high. He noted that that they had been built on the site and, with 24 tubular arches each, were not insignificant. He also found that the provision of anchor points set in concrete suggested a degree of physical attachment beyond that of temporary protection from sun, wind and rabbits.

He accepted that the area's light sandy soils made normal pegged guys insecure. While other local farmers had resorted to substantial stakes to restrain their temporary polytunnels, he considered that these were not as physically attached to the land as the anchored arches on the appeal tunnels. He ruled that the tunnels represented building operations for which no permitted development rights were available under Class B, Part 6, schedule 2 of the General Permitted Development Order 1995.