‘Tis the season of Christmas markets and festive spirit. But, as we touched on in last month’s Spotlights, both Edinburgh and Aberdeen have been called out for not having secured planning permission for their Christmas markets.
It may come as a surprise to some that temporary markets require planning permission, but they do; both for the temporary change of use of the land, and for the erection of temporary buildings on it.
The temporary change of use element of this is fairly clear cut – use of a public street or park as a Christmas market is quite clearly a material change of use of the land on which it is located and, whereas temporary changes of up to 28 days in a calendar year are allowed under permitted development rights, the extended nature of the festive season means that most markets will be in place for longer than this. As such, planning permission for the change of use must be applied for.
The slightly trickier question is whether the market units constitute buildings for the purposes of planning, and if any built development has accordingly been carried out.
Subject to some limited exceptions, development includes any building, engineering, mining or other operations in, on, over or under land, with building operations further defined as demolition, rebuilding, structural alterations of, or additions to buildings, and other operations normally undertaken by a person carrying on business as a builder. This definition is not however always an easy one to apply, and has led to many appeal decisions and litigation.
For example, structures such as moveable garden sheds (to which some Christmas market units might be compared) have been found to constitute buildings for planning purposes, applying a line of case law in which each of the following were likewise found to be buildings: a marquee sited on land for a significant part of the year, polytunnels and, in one case, moveable chicken sheds. On the other hand, a recent appeal decision in England found that a houseboat doesn’t constitute a building for planning purposes. And, returning to the festive theme, Fife Council has just this year confirmed that the erection of a Christmas tree in St Andrews is not a building operation, and so no planning permission is required for this – as an aside, it should be noted that this is only the case if the Christmas tree is temporary as, if it were permanent, the Council considered that it would constitute new landscaping, for which planning permission would be necessary.
Ultimately, the definition of what constitutes a building goes beyond what would ordinarily be described as buildings, and doesn’t require the object in question to be incorporated into the land. Rather, this is determined based on a combination of factors, including the structure’s size, permanence and degree of physical attachment, none of which should be applied too narrowly.
This then leaves a question mark with regards to Christmas market units, each one of which is relatively small, only in place for a relatively short period of time (albeit longer than would be allowed for under permitted development rights), and not physically attached to the land in any significant way. Planning authorities do though seem to be inclined to consider such structures to be buildings, and to treat them accordingly. In turn, this can have significant implications for the fee that a planning application for a Christmas market will attract, as this is calculated on the area of floorspace created, rather than merely being the fee for a change of use.
So, where does this leave our Christmas markets? As we also commented in last month’s Spotlights, it seems that no enforcement action is to be taken, at least not this year. However, if the same Christmas markets want to continue to operate next year, they would be advised to apply for planning permission well before the start of the festive season, and to ensure they have budgeted for what could be a significant application fee.
This is also a valuable lesson for anyone looking at putting up any built structure on land for more than 28 days; it’s essential to consider whether planning permission might be required and, if there is any doubt, seek appropriate advice.
On which, to find out how we can help with any aspect of the planning process, please visit our website or email us at email@example.com. Or, if you would like to see our other blogs or sign up for email updates, please click here.
Thanks for reading!
Pippa and Maggie