Town and country planning – Enforcement notice – Material change of use – Local planning authority issuing appellants with enforcement notice concerning material change of use of land to residential development – Planning inspector dismissing appeal – Court granting application for judicial review – Appellants appealing – Whether inspector erring in law in relation to scope of power to require removal of operational development – Appeal dismissed
The first respondent owned land adjacent to the A40 in Beaconsfield, within the green belt. The second respondent 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 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 local authority issued an enforcement notice alleging breach of planning control requiring the respondents 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 respondents appealed. 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 respondents argued that the house, although not its use, was immune from enforcement action.
Following an inquiry, an inspector appointed by the appellant secretary of state dismissed the respondents’ appeal and upheld the enforcement notice. The High Court granted the respondents’ application to quash that decision: [2023] EWHC 2053 (Admin); [2023] PLSCS 135. The appellant appealed.
Held: The appeal was dismissed.
(1) A local planning authority might issue an enforcement notice requiring the removal of operational development connected to a material change of use, for the purpose of restoring the land to its condition before the development took place, where the operational development was part and parcel of the material change of use or integral to it. It was proper, when looking at a building operation or the construction of a building, to ask whether it was simply ancillary to the change of use. That was essentially a matter of fact and degree and depended on the particular circumstances of the case: Murfitt v Secretary of State for the Environment (1980) 40 P&CR 254 applied.
The Murfitt principle was not to be over-stated. It operated within the bounds of the statutory scheme, which set different time limits for enforcement against unauthorised operational development and unauthorised material changes of use. Immunity from enforcement respectively for buildings and their uses were potentially very different matters. The principle could not override the basic distinction put in place by parliament. As a judge-made principle, it could only exist within that framework, not outside it: Kestrel Hydro v Secretary for State for Communities and Local Government [2016] EWCA Civ 784; [2016] EGLR 58 considered.
(2) The Murfitt principle embodied the remedial power in section 173(4)(a) to require the restoration of the land to its condition before the breach of planning control took place. It reflected the substance of that remedial, or restorative, provision. It represented a practical means of remediating the unauthorised change of use. The decision in Murfitt recognised that the statutory power to require restoration of the land to its previous condition could, in some circumstances, include the removal of operational development that could not be enforced against on its own because of the four-year time limit in section 171B. However, the principle did not extend to works that were more than merely ancillary or secondary and were instead fundamental to or causative of the change of use itself.
The relationship between the unauthorised change of use and the operational development generated by it had consistently been described in the cases in terms of the operational development being “ancillary to” the change of use. Operational development carried out “in its own right”, or “fundamental to or causative of” the change of use was not “ancillary” to that change of use. Operational development envisaged by the Murfitt principle was, as the word “ancillary” implied, subordinate or secondary to the material change of use. Therefore, the principle did not support the removal of a building or other operational development that was a separate development in its own right or works which were fundamental to or causative of the change of use. Where the operational development had itself brought about the change of use, the Murfitt principle was not engaged.
(3) Bringing within the scope of the Murfitt principle operational development that had itself caused the material change of use went against the statutory scheme, undermining the different time limits in section 171B, and compromising, if not removing altogether, the immunity of operational development from enforcement action after four years (section 171B(1)): Newbury District Council v Secretary of State for the Environment and another [1995] JPL 329 and 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) considered.
The construction, without planning permission, of a new dwelling house on an undeveloped site, as took place here, was operational development to which the four-year time limit under section 171B(1) applied, not the ten-year time limit for material changes of use under section 171B(3). Otherwise, section 171B(1) would have become largely obsolete. Building a dwelling house on land previously undeveloped would be likely to result in a change of use of that land. But that did not mean that there was a ten-year time limit for enforcement against such operational development, when the statutory time limit for enforcing against unauthorised operational development was four years under section 171B(1). That was not the effect of the principle in Murfitt.
(4) In the present case, the inspector misdirected himself on the Murfitt principle and thus misapplied it. By putting aside the essential requirement of the principle that the works had to be “ancillary” or “incidental” to the change of use, the inspector effectively expanded the principle beyond its boundaries to a broad jurisdiction to pursue enforcement action within the 10-year time limit under section 171B(3) against operational development plainly falling under the four-year limit in section 171B(1).
Zack Simons and Nick Grant (instructed by the Government Legal Department) appeared for the appellant; Douglas Edwards KC (instructed by Harrison Grant Ring Solicitors) appeared for the respondents.
Eileen O’Grady, barrister
