In English planning law, more things can be “buildings” than you might think.
The infamous “Woolley Chickens” case (R (Save Woolley Valley Action Group Ltd) v Bath and North East Somerset Council [2012] EWHC 2161 (Admin)) confirmed that even mobile poultry units can amount to a building (for the purposes of the Town and Country Planning Act 1990 at least).
Generally one wouldn’t expect a building to be something that could be moved around the site it’s on. However the definition of building that we are given to work with in the 1990 Act is a very broad one and “includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building”.
So, in a 1990 Act context at least, we go beyond the usual dictionary definition, and incorporate structures and erections, thereby casting a considerably wider net. In that light the counterintuitive suggestion that a mobile poultry unit could be a structure or erection seems a more common-sense one.
But that broad definition isn’t one that applies to the entirety of the planning regime – in a recent notable example on which Lindsay Garratt and Alex Woolcott of Winckworth Sherwood’s Planning team advised, caution needs to be exercised when interpreting what amounts to a building for the purposes of the CIL Regulations.
When setting out the statutory framework underpinning the CIL Regulations, Parliament decided not to carry over that broad definition from the 1990 Act, and expressly excluded the CIL regime.
The net effect of that is that whilst something can be a “building” for the purposes of the 1990 Act (including the need to obtain planning permission for its construction/installation), it does not automatically follow that it is “development” for the purposes of the CIL Regulations.
In a CIL context development is:
“(a) anything done by way of or for the purpose of the creation of a new building, or
(b) anything done to or in respect of an existing building.”
So it follows that without a building, there cannot be any development chargeable to CIL.
The question is then, without that broad 1990 Act definition, what is a “building” in CIL terms?
To help answer that, we turn to the principles in Skerritts (Skerritts of Nottingham Ltd v Secretary of State for the Environment, Transport and Regions (No 2) [2000] JPL 1025), namely assessing the:
- Size;
- Degree of permanence; and
- Degree of physical attachment.
In our recent example the owners of a floating vessel moored in London were met with a seven figure CIL liability notice from the CIL collecting authority, notwithstanding that the floating vessel had been built by shipbuilders, floated into place over the North Sea, was moored as a boat would be, and could be unmoored and floated away again.
If not applying the 1990 Act definition, not many buildings can do that.
Applying the Skerritts tests, its size, movable nature, and the ease with which it could be removed from its mooring location all pointed firmly towards it not being a building in CIL terms (even if it might amount to a building in 1990 Act terms).
However the collecting authority was adamant that the floating vessel ought to amount to chargeable development, and refused to withdraw the liability notice.
On an appeal under Regulation 114 of the CIL Regulations the Valuation Office Agency agreed with us that the 1990 Act definition didn’t apply to the CIL Regulations, and that the Skerritts tests needed to be applied instead. On those, the floating vessel didn’t amount to chargeable development and in turn didn’t attract liability to CIL.
Following an attempt to challenge the VOA’s decision by the collecting authority, the High Court and Court of Appeal both endorsed the original decision, confirming that a narrower interpretation of “building” ought to be applied, and that turning to the Skerritts tests is a valid approach in informing a decision.
So in cases of atypical structures, real care needs to be taken in determining whether or not it amounts to a ‘building’ in CIL terms, and not to allow the Wool(ley Chickens) to be pulled over your eyes by the 1990 Act’s expansive definition.