Page 8 - ALG Issue 2 20202
P. 8

legal matters Back to basics
Planning law, like any other law, is complex and open to interpretation in different ways by different people. In practice, approaches on this matter may vary from one planning authority to another and in fact the government state that they are keen for local authorities to operate according to local needs. This happens because Parliament has given local planning authorities responsibility for the day-to- day planning control.
The present system was set up to control development and the use of land and buildings; however, there
are various pieces of legislation that remove the need to obtain permission. This is where the confusion tends to arise. The planning legislation states that planning applications must be determined in accordance with the development plan unless other material considerations are applicable. The development plan consists of any adopted local plan, neighbourhood plan or local development documents. All of these should conform to government guidance and policy which will include circulars, planning policy statements, and other guidance published by the Ministry of Housing, Communities and Local Government (MHCLG).
As usual, not a straightforward answer. There is case law relating to this issue dating back to 1980; Crowborough Parish Council v Secretary of State for the Environment, where it was held that allotments did fall within the definition of agriculture, therefore planning permission was not required to use agricultural land as allotments. This ruling has been supported in several appeal cases. The Royal Town Planning Institute (RTPI) also confirmed in
2011 that there is no need to apply
for permission if the allotments are
to be used for growing vegetables
and fruit. However, this may not be
the case where an allotment’s use is non–agricultural, as a leisure plot, then permission would be required (e.g. laying and keeping a lawn). To avoid the necessity the allotment must be used for horticulture, which would include growing food and flowers, fruit growing, seeding growing and for the breeding and keeping of livestock. Under Tenancy Agreements and the definition of Allotment under the 1922 Act, some of these activities may not be possible.
Once land has been acquired the next thing allotment holders require are sheds and greenhouses.
Where the Local Authority is the landlord there is an exemption under the General Development Order (GDPO) 1995. This allows a local authority to erect small ancillary buildings of less than 200 cubic metres and less than 4 metres high on land belonging to them or maintained by them. This exception does only apply to local authorities, parish councils, district councils or county councils. Taking the wording literally this means the local authority itself should construct the building.
In practice what actually happens is the local authority permit the building to be erected on site by the allotment holder. It is vital to check the Tenancy Agreement to see what the restrictions are and what permission via the Association / Council is required.
The RTPI also confirmed that, where small sheds are erected that do not have foundations on other than local authority sites, this is a very grey area and the local planning authority do need to be consulted. So it would appear from that advice that most buildings
no matter how small or how they are constructed, will require planning permission if they are privately owned land (non-local authority).
Small buildings on school grounds owned by the County Council will also benefit from the exception. Permission for Private Schools will be required. Housing Associations have similar problems and they will only be able to take advantage of the exception if the land is owned or maintained by the Local Authority.
Communal huts and clubhouses will likely be larger than a plotholder's shed so will always require planning permission
Any portable building in place for more than 28 days does require planning permission and the same is applicable to containers. Portable buildings and containers are unsightly and Local Authorities are unlikely to favour
where they are visible from outside the allotments. To increase the chance of gaining planning permission, the plans should include screening with attractive fencing or landscaping.
The Communal Huts and Clubhouses will likely be larger than a plotholder's shed so will always require planning permission, and there may be requirements for car parking as part of the permission.
A permanent building with a connection to
a sewer or septic tank would always require planning permission. A temporary portable toilet or composting toilet that is not fixed into the ground may not require planning permission; however, if not moved from time to time check with your local planning authority.
When you do seek any advice from the Local Planning Authority, do always request the advice in writing. We have experienced a couple of cases where verbal advice has been given, and allotment associations have gone ahead to bring containers on site. Complaints have been made by residents, and then retrospective planning permission has been requested. Adopt the cautious route and obtain all advice in writing from planning departments.
Liz Bunting,
Legal and Operations Manager
Due to case law, this is dealt with by the Local Authority on a case by case basis by the local planning authority. A polytunnel which is only intended to be used during the growing season and would be removed in the winter would not require planning permission but once again Tenancy Agreements do need to be checked and the appropriate permission sought.
 8 Allotment and Leisure Gardener

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