Town and country planning – Enforcement notice – Local planning authority issuing appellants with enforcement notice concerning material change of use of land to residential development – Planning inspector dismissing appeal – Appellants appealing – Whether inspector erring in law in relation to scope of power to require removal of operational development – Application granted
The first appellant owned land adjacent to the A40 in Beaconsfield, within the green belt. The second appellant operated a timberyard on the opposite side of the road. Attempts to gain planning permission for a dwelling on the site had been refused by the second respondent local planning authority.
In 2013, the construction of a dwelling house, known as the Goose House, was commenced and substantially completed in April 2014, together with an area of garden with four small buildings or structures within it.
In February 2021, the second respondent issued an enforcement notice alleging breach of planning control requiring the appellants to cease the residential use of the land, demolish or dismantle the dwelling and incidental structures, and remove all debris and materials, within six months.
The first appellant appealed. It was common ground that the dwelling house had been substantially completed more than four years before February 2021 and therefore benefited from the immunity provision in section 171B (1) of the Town and Country Planning Act 1990, but the residential use of the site had not been subsisting for 10 years.
The appellants argued that the house, although not its use, was immune from enforcement action.
Following an inquiry, an inspector appointed by the first respondent secretary of state dismissed the appellants’ appeal and upheld the enforcement notice.
The appellant applied to quash that decision. The issue was whether the inspector erred in law in relation to the scope of the power to require removal of operational development pursuant to section 173(4)(a) of the 1990 Act.
Held: The application was granted.
(1) The issue was as to the limits or parameters of the power to require the restoration of the land under section 172(3) of the 1990 Act. The starting point had to be the statutory scheme. Section 173(3) allowed the local planning authority to require the restoration of the land to its condition before the breach took place, but section 171B gave operational development, including the erection of dwelling houses, immunity from enforcement action four years after substantial completion.
The Divisional Court in Murfitt v Secretary of State for the Environment [2016] EGLR 58 clearly established that the power to require restoration could include the removal of operational development, which could not be enforced against on its own, because of section 171B.
However, it was also clear that the Murfitt principle was subject to limitations. Most importantly, it could not override or extend the statutory scheme.
In every case in which the Murfitt approach might potentially apply, it would generate questions of fact and degree for the decision maker.
The only limitations were that the operational development could not be of a nature and scale exceeding what was truly integral to, or part and parcel of, the material change of use; and the enforcement notice could not require the removal of works previously used for or capable of being used for a lawful use of the land: Kestrel Hydro v Secretary for State for Communities and Local Government [2016] EWCA Civ 784; [2016] EGLR 58.
(2) An enforcement notice directed at a breach of planning control by the making of an unauthorised material change of use might lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself, provided that the works concerned were integral to, or part and parcel of, the unauthorised use. It did not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use had ceased.
But it could extend to unauthorised changes of use where the associated works, viewed alone, would have become immune from enforcement under the four-year rule in section 171B(1) or would be outside the scope of planning control.
In every case in which it might potentially apply, it would generate questions of fact and degree for the decision-maker. Whether it applied in a particular case would depend on the circumstances of that case: Murfitt and Somak v Secretary of State for the Environment [1988] 55 P&CR 250 considered.
In the various cases where Murfitt had been applied, the works had been secondary, ancillary or “associated with” the change of use. They had not been fundamental to or causative of the change of use.
(3) Where the change of use entailed subsequent physical works to facilitate and support it, and those works were thus integral to the unauthorised use, the statutory scheme allowed the enforcement notice to require the removal of such works as well as the cessation of the use itself.
To go further and allow the Murfitt principle to extend to the operational development giving rise to the change of use, was a step too far: Welwyn Hatfield Council v Secretary of State for Communities and Local Government [2010] EWCA Civ 26; [2010] 1 EGLR 98 (CA); [2011] UKSC 15; [2011] 2 EGLR 151 (SC) and Newbury District Council v Secretary of State for the Environment and another [1995] JPL 329 considered.
An attempt to use an enforcement notice limited to material change of use, because the operational development could no longer be directly enforced against, to achieve removal of the principal operational development (here the dwelling house) was contrary to the statutory scheme.
(4) The scheme of the Act drew a clear distinction between enforcement against the physical building, entailing a four-year limitation period, and against change of use, involving a 10-year limitation period.
Both the statute itself and the caselaw pointed to a limitation on the power described in Murfitt, where the operational development was itself the source of or fundamental to the change of use. Whether that limitation was reached was a matter of fact and degree. However, the inspector in this case erred in not appreciating that there was such a limitation, and that to require the removal of the dwelling house, was clearly going beyond the statutory power.
The inspector’s decision would be quashed and the matter remitted to the first respondent for redetermination.
Douglas Edwards KC (instructed by Harrison Grant Ring Solicitors) appeared for the appellant; Zack Simons and Nick Grant (instructed by the Government Legal Department) appeared for the respondent.
Eileen O’Grady, barrister
