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Festive lights out of focus

A Christmas Caution – A Tale of Unregulated Festive Markets

Date: 02/12/2019 | Planning

Following news about Edinburgh’s annual Christmas Market operating without planning permission, another Christmas market in Scotland, this time in Aberdeen, is also set to go ahead despite not having the requisite consent. What planning law applies to temporary Christmas uses and how can we ensure seasonal celebrations are not soured by legal action?

Ghost of Planning Present

Planning permission is required in order to lawfully carry out “development”. Unlawful development could attract enforcement action, adversely impact commercial contracts and, ultimately, constitute a criminal offence.

The Town and Country Planning (Scotland) Act 1997 defines “development” broadly, as either “the carrying out of building, engineering, mining or other operations in, on, over or under land” or “the making of any material change in the use of any buildings or other land”. Building operations include a wide range of physical works, including demolition of buildings, rebuilding, structural alterations of or additions to buildings, and other operations normally undertaken by a person carrying on business as a builder. What constitutes a material change of use will largely depend on the circumstances.    

There are several exemptions to the requirement for planning permission, known as “permitted development” and defined in the Town and Country Planning (General Permitted Development) (Scotland) Order 1992. If a development is “permitted development” it can go ahead without obtaining consent from the planning authority. The main exemption that would be likely to apply to short-term or one-off events is one provided for a change of use of land for a temporary period not exceeding 28 days in any calendar year. Any structures placed on that land in connection with a permitted use would also not require consent during that period. However, the Christmas markets are understood to run for around 50 days (in the case of Edinburgh) and 40 days (in Aberdeen) so this exemption has not been available.

Ghost of Planning Past

Where a suspected breach of planning regulation has occurred, planning authorities may investigate and take enforcement action. They have wide statutory powers to require operations to stop or force structures to be removed. An example of how these powers can be used is the infamous case of Robert Fidler, who built a mock Tudor Castle in Surrey countryside and hid it behind hay bales to evade planning enforcement. After a decade of legal battles, he was ordered to tear it down or face jail. Importantly, although planning authorities have extensive enforcement powers, they are not under any obligation to use them. They can exercise their discretion not to take enforcement action if there is no public interest in doing so.

In practice, a planning authority will usually seek to have a breach rectified (for example, by stopping the unconsented use) or regularised (by requiring the operator to apply for a retrospective planning permission) rather than punishing the person in breach. Both Edinburgh and Aberdeen Councils have taken this approach, allowing their respective Christmas markets should go ahead this year despite irregularities. Both Councils appear satisfied that there is no health and safety risk in doing so and appropriate building warrants have been issued. It is doubtful that the markets would be permitted to open if neither planning permission nor building consents had been obtained.  

Ghost of Planning Yet To Come

It is not yet clear what action, if any, the Aberdeen Christmas Village will take in future but the operators of the Edinburgh Christmas Market are reported to be submitting planning applications for Christmas markets in 2020, 2021 and 2022. If planning permission is granted for these (which is very likely but by no means guaranteed), it will be subject to a number of conditions. An event of this nature is likely to be subject to conditions regulating how it is constructed and removed, its design and size, what activities or products the stalls can be used for, hours of operation, noise and light emission limits, waste disposal and the length of time for which the market can run. The Edinburgh Christmas Market’s sensitive location near a World Heritage Site, adjacent to listed buildings, neighbouring conservation areas and key transport infrastructure could mean other conditions are imposed following input by statutory consultees. As with all development, various other consents will be required in addition to planning permission, such as Building Warrants and operating licences (e.g. a licence to serve alcohol).

Please contact Jacqueline Cook, Head of Planning Law, for further information.

The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.

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