Following unsuccessful attempts to obtain planning permission for development on a Green Belt site which had permission for agricultural use only, the claimants constructed a dwelling house which was substantially completed in 2014. In 2021, pursuant to section 172 of the Town and Country Planning Act 1990, the local planning authority issued an enforcement notice for breach of planning control by material change of use from agricultural to residential and the carrying out of operational development to facilitate that change of use. The notice required the cessation of residential use of the land, demolition of the building occupied as a dwelling and of incidental structures, and removal of all paraphernalia which had been brought onto the land in connection with the unauthorised use. An application for a certificate of lawful use and development in respect of the construction of the dwelling was also refused. The first claimant appealed against both decisions on the ground that the house itself had become immune from enforcement action by virtue of section 171B(1) of the 1990 Act, no enforcement having been brought within the time limit of four years from the date when the relevant building operations were substantially completed, albeit that the use of the house, to which the longer ten-year time limit in section 171B(3) applied, was not immune. The appointed inspector dismissed both appeals on the basis that the principal form of development had been the making of the material change of use of the land, that the construction of the building could reasonably be regarded as “associated works” and that, since the purpose of the notice, pursuant to the power in section 173(3) and (4)(a) of the 1990 Act, was clearly to remedy the breach of planning control by returning the land to the condition it was in before the breach had taken place, it was not excessive to require the removal of the building. The claimant appealed under section 289 of the 1990 Act against the inspector’s enforcement notice decision and applied for statutory review under section 288 against his decision concerning the lawful use certificate. The judge allowed the appeal and granted the statutory review, holding that although section 173(3) of the 1990 Act allowed the local planning authority to require the restoration of the land to its condition before the breach had taken place, the limits or parameters of that power fell to be determined taking into account the overall statutory scheme including section 171B, which gave “operational development”, including the erection of dwelling houses, immunity from enforcement action four years after substantial completion. The principle 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 (“the Murfitt principle”) was subject to limitations including that it could not override or extend the statutory scheme; both the statute itself and the case law pointed to a limitation on the enforcement power where the operational development was itself the source of or fundamental to the change of use. The inspector had 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.
On the Secretary of State’s appeal—
Held, appeal dismissed. The application of the Murfitt principle was subject to limitations where the operational development was itself the source of or fundamental to the change of use. First, the principle was not to be over-stated. Crucially, it operated, as it had to, 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 Murfitt principle could not override this basic distinction put in place by Parliament. As a judge-made principle, it could only exist within that framework, not outside it. Secondly, the principle embodied the substance of the remedial power in section 173(4)(a) of the 1990 Act to require the restoration of the land to its condition before the breach of planning control took place. The Murfitt principle 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. Thirdly, the language used in the authorities to convey the meaning and scope of the Murfitt principle indicated the narrowness of the principle, and demonstrated the court’s intent to confine it within the statutory scheme. Thus 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. Other words and phrases had been used to express the idea of the operational development serving, or being subordinate or secondary to, the material change of use, including “part and parcel of the material change”, “integral”, “associated” and “entailed”. Fourthly, it followed that the Murfitt principle did not support the removal of a building or other operational development that was a separate development in its own right, or works 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. Bringing within the scope of the Murfitt principle operational development that had itself caused the material change of use would go 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)). Fifthly, this understanding of the Murfitt principle was not displaced by the submission that it would create “useless” buildings, beyond the reach of enforcement action. In such circumstances, the local planning authority might have to consider whether it was expedient to enforce against the material change of use even though it would have been lawful to retain the building itself, which would be a matter of judgment for the authority. Whether the Murfitt principle was engaged in a particular case would always be a matter of fact and degree, but the inspector had to exercise judgment on a correct understanding of the principle itself, keeping in mind the parameters set by the statutory scheme. The inspector, by putting aside the essential requirement of the Murfitt principle that the works had to be “ancillary” or “incidental” to the change of use, had 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). It was clear that the operational development in the present case was fundamental to or causative of the material change of use. Accordingly, the inspector had misdirected himself and in doing so made an error of law (paras 36–46, 49–51, 53, 55, 56).
Per curaim. Section 171B of the 1990 Act has been amended by section 115 of the Levelling-up and Regeneration Act 2023 so that for both operational development and material changes of use, the time limit for the taking of enforcement action is to be ten years. 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 those arising in the present case (paras 54, 55, 56).
Zack Simons and Nick Grant (instructed by Treasury Solicitor) for the Secretary of State.
Douglas Edwards KC and Michael Rhimes (instructed by Goodenough Ring Solicitors) for the claimants.