Court of Appeal rejects challenge over enforcement notice and application of Murfitt principle

A planning inspector misdirected himself in a dispute over the construction of house in Beaconsfield and misunderstood case law, the Court of Appeal has ruled.

Sir Keith Lindblom, Senior President of Tribunals, rejected a case argued by the Secretary of State for Levelling Up, Housing and Communities that an earlier ruling by Mrs Justice Lieven should be overturned.

The case concerned the inspector’s determination of an appeal against an enforcement notice issued under section 172 of the Town and Country Planning Act 1990, which required the end of residential use on the land involved and the demolition of a bungalow in line with an enforcement notice issued by Buckinghamshire Council in February 2021.

Sir Keith said he had to decide whether the inspector misapplied the principle in Murfitt v Secretary of State for the Environment [1980].

The Secretary of State appealed against Lieven J’s quashing of the inspector's decision to dismiss an appeal by resident Ian Caldwell, and to uphold Buckinghamshire’s enforcement notice against an alleged breach of planning control.

This included requiring demolition of The Goose House bungalow, which had been built without planning permission in 2013-14.

The inspector had also dismissed an appeal under section 195 of the 1990 Act by Timberstore against the council's refusal of a certificate of lawful use or development for residential use, and an appeal by Mr Caldwell under section 195 against its failure to determine an application for a certificate of lawful use or development under section 191(1)(b) for the retention of The Goose House.

Sir Keith noted the inspector acknowledged “the Goose House and the utility/services cabinet … would, in their own right, be immune from enforcement by virtue of section 171B(1)”, but added that “where there has been a material change of use of land, structures which may, viewed in isolation, have become immune from enforcement may nonetheless be required to be removed in order to restore the land to the condition it was in before the breach of planning control occurred”.

The inspector had identified the issue as being “whether, in the circumstances, [the Goose House and the utility/services cabinet] can be required to be removed”

Lieven J had concluded the inspector had erred in law. While section 173(3) and (4) allowed a local planning authority to require the restoration of land to its condition before the breach of planning control, section 171B gave operational development, including the erection of dwelling houses, immunity from enforcement action four years after substantial completion.

The Secretary of State argued that the decisive question, following the Court of Appeal's reasoning in Kestrel Hydro, was whether the inspector was entitled to find that the construction of The Goose House was ‘part and parcel' of the unlawful change of use.

He submitted the Murfitt principle was subject to two restrictions: first, that the relevant operational development cannot exceed the nature and scale of that which is truly ‘integral to or part and parcel of” the material change of use, and second, that an enforcement notice cannot require the removal of works previously undertaken for a lawful use of the land and capable of being employed for some lawful use once the unlawful use has ceased.

Mr Caldwell submitted that an overly expansive application of the Murfitt principle would disrupt the legislative distinction in the different periods for enforcing against operational development and material changes of use.

Sir Keith said this was “basically correct. In my view the judge's reasoning was sound. She understood the principle in Murfitt, and its limits.

“Her observation…that the legislation and the relevant authorities indicate a ‘limitation on the power described in [Murfitt], where the operational development is itself the source of or fundamental to the change of use' captured the essential point.

“And her conclusion that the inspector ‘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’ was also correct.”

Sir Keith said the inspector had to direct himself appropriately on the meaning and scope of Murfitt and otherwise his decision would be was flawed by legal error.

“That, in my view, is what happened here,” he said.”The inspector did misdirect himself, and in doing so he made an error of law. Though he purported to follow the reasoning of this court in Kestrel Hydro and other relevant cases, he did not succeed in doing so.”

The inspector’s understanding of the Murfitt principle was incorrect and Sir Keith said: “By putting aside the essential requirement of the Murfitt principle that the works must 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 ten-year time limit under section 171B(3) against operational development plainly falling under the four-year limit in section 171B(1).”

He added: “The inspector did misdirect himself on the Murfitt principle and thus misapplied it. This was fatal to his decision [and] enough for the section 289 appeal to succeed.”

Sir Keith noted as a postscript that his judgment “must be read bearing in mind the change to the statutory time limits for enforcement action in section 171B that has now been brought about by section 115 of the 2023 Act.

“Although different time limits for enforcement will continue to apply to breaches of planning control that occurred before 25 April 2024, this reform of the statutory scheme will clearly affect future cases where the facts are similar to these."

Lord Justice Coulson and Lady Justice Andrews both agreed with Sir Keith’s judgment.

Mark Smulian