Following a four-day enforcement inquiry covering a number of linked appeals, the Planning Inspectorate has upheld an enforcement notice requiring the demolition of an unauthorised residential dwelling known as “The Goose House” constructed adjacent to a commercial timber site in 2014. The enforcement notice was issued in 2021.
The normal legal position is that operational development is immune from planning enforcement after 4 years. However, the Council successfully argued that in this case, the construction of a dwelling was ‘part and parcel’ of the wider change of use of land to residential (change of use being immune from enforcement after 10 years), applying the decision in Kestrel Hydro v SSCLG [2016] EWCA Civ 784.
At the close of the inquiry there were detailed legal submissions on the application of the Kestrel Hydro case and related judicial decisions. The Inspector reasoned his decision as follows:
- The Kestrel Hydro decision sets out the principle that an enforcement notice directed at a breach of planning control by the making of an unauthorised material change of use may 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 are integral to or part and parcel of the unauthorised use and are not works previously undertaken for some other lawful use of the land.
- This does not embrace operational development of a nature and scale exceeding that which is truly integral to a material change of use as the alleged breach of planning control, nor does it override the regime of different time limits for different types of development in section 171B.
- In the circumstances of the Goose House, the principal form of development was the making of the material change of use of the land, and the construction of the building can reasonably be regarded as associated works.
- The doubt expressed by the Court in the Welwyn Hatfield case as to whether an enforcement notice issued against a change of use could ever require the demolition of an entire dwelling was obiter. In this case, as a matter of judgement, the operational development was a modest single storey building that was not of a nature and scale that would take it beyond what could be considered integral to the material change of use.
The decision may be of interest to those advising on enforcement time limits. It is available here.
The inquiry also considered a further enforcement appeal relating to a separate piece of land which was also dismissed.
Alex Shattock is a barrister at Landmark Chambers. He acted for Buckinghamshire Council, instructed by Katherine Stubbs. He called Ingrid Smith of Ivy Legal and Billy Johal of Buckinghamshire Council.