Court of Appeal Highlights Five Key Points in Applying the Murfitt Principle to Enforcement Breaches

Associate solicitor Sabah Siddiq, in our Planning & Environmental Law team, explains.

In the Court of Appeal case of Secretary of State for Levelling Up, Housing and Communities v Caldwell and another [2024] EWCZ Civ 467, the court dismissed the appeal, upholding that the judges reasoning was sound judgement and that the judge had correctly understood and applied the Murfitt principle.

What is the Murfitt principle?

The power to require removal of the operational development under s173(4)(a) of the Town and Country Planning Act 1990 (as amended) (the 1990 Act), was considered in the case of Murfitt v Secretary of State for the Environment and East Cambridgeshire DC (1980) 40 P & CR 254, [1980] 5 WLUK 4. The Murfitt case considered the scope of the power in s173(4)(a) for an enforcement notice to include a requirement the purpose of which is to “restore the land to its condition before the breach took place” and how that relates to s171B(1) of the 1990 Act, by which an enforcement action can be taken against the operational development after the end of four years from the substantial completion of the building operation.

In this case, the High Court held that s173(3) allows the local planning authority to require the restoration of the land to its condition before the breach took place, however, the statute in s171B gives operational development, including the erection of dwellinghouses, immunity from enforcement action four years after substantial completion. Therefore, where that change of use of the land entailed subsequent physical works to facilitate and support it and those works were 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.

The principle established in Murfitt meant that an enforcement notice directed at a breach of planning control, by making of an unauthorised material change of use, could lawfully require the land or building in question to be restored to its former condition before that change of use took place, by the removal of the 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. The Murfitt principle is well established and has been considered in the recent Court of Appeal case of Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784.

High Court judgment

In the case of Caldwell and another v Secretary of State for Levelling-Up, Housing and Communities and another [2023] EWHC 2053, the High Court considered whether a planning inspector had erred in upholding an enforcement notice requiring the cessation of land for residential use and the removal of a dwellinghouse.

Mr Caldwell challenged the planning inspector's decision, to uphold an enforcement notice in relation to its land and the refusal of a lawful development certificate (LDC) in respect of the residential use. Mr Caldwell had applied several times for planning permission to build a bungalow, which was refused repeatedly by Buckinghamshire Council (the Council).

Mr Caldwell, nevertheless, went ahead and built a bungalow on Green Belt land, which was substantially completed in April 2014. The Council issued an enforcement notice on 23 February 2021, alleging breach of planning control of material change of use of the land from agricultural use to residential and the associated operational development works which facilitated the unauthorised change of use of construction of building occupied as a dwelling.

The enforcement notice required the cessation of the residential use and the removal of any structures and associated paraphernalia brought on the land in connection with the unauthorised change of use and to restore the land to its former condition before the breach of planning control occurred. Timberstore Limited, which operates a timberyard on the opposite side of the land, went to considerable length to hide and conceal the dwellinghouse, by erecting a large timber fence around the land. Interestingly, the Council did not argue “concealment” at the inquiry.

Mr Caldwell appealed against the enforcement notice and submitted a Lawful Development Certificate (LDC). It was a common ground at the inquiry that the dwellinghouse had been substantially completed more than four years before February 2021 and therefore benefited from the immunity provision in s171B(1) of the 1990 Act, namely that enforcement action could not be taken against operational development after the end of four years from the substantial completion of the building operation, although the residential use of the site had not been subsisting for more than ten years.

Mr Caldwell argued that although the use of the dwellinghouse was not immune from enforcement action, that requirement of the removal exceeded what was necessary to remedy the breach. The planning inspector held that the purpose of the notice was to remedy the breach of planning control by returning the land to the condition it was in before the breach took place, and that it was not excessive to require the dwelling's removal. The planning inspector consequently upheld the enforcement notice and refused to issue an LDC.

Mr Caldwell challenged the planning inspector’s decision to the High Court, on the ground that the planning inspector had erred in law, in relation to the scope of the power to require removal of operational development under s173(4)(a) and that it related to the immunity provision in s171B(1). Mr Caldwell contended that the power to remove works associated with an unlawful use did not extend to the building itself in which the unlawful use was taking place, and which generated that use, and that the inspector was wrong to find that the enforcement notice could require the removal of the dwellinghouse, and not merely the cessation of its use.

The High Court held that both the 1990 Act and the case law pointed to a limitation on the power described in Murfitt, where the operational development is itself the source of, or fundamental to, the change of use. Whether that limitation had been reached was a matter of fact and degree. The High Court held that the planning inspector had made an error in law, in not appreciating that there was such a limitation, and that to require the removal of the dwellinghouse was going beyond the statutory power. The Secretary of State appealed Mrs Justice Lieven judgement to the Court of Appeal.

Court of Appeal judgment

The Court of Appeal held that the judge’s reasoning was sound and that she understood the principle in Murfitt and its limits and the judge’s observation in relation to the 1990 Act and case law imposing a limitation on the power described in Murfitt, and that the planning inspector had erred in not appreciating the limitation was also correct.

The Court of Appeal highlights five key points to have emerged in relation to the Murfitt principle:

1. The Murfitt principle must not be overstated, and it must operate within the bounds of the statutory scheme, which sets different time limits for enforcement against unauthorised operational development and unauthorised material changes of use.

2. The Murfitt principle recognises that the statutory power to require restoration of the land to its previous condition can, 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 s171B. However, the principle does not extend to works that are more than merely ancillary or secondary and are instead fundamental to or causative of the change of use itself.

3. The meaning and scope of the Murfitt principle is to be applied narrowly and is confined within the statutory scheme. Therefore, the relationship between the unauthorised change of use and the operational development has consistently been described in the cases in terms of the operational development being "ancillary to" the change of use and the words used such as “secondary” , “ancillary” or "associated with the change of use”, and "facilitative only" all have the sense that the operational development envisaged by the Murfitt principle is, as the word "ancillary" implies, subordinate or secondary to the material change of use.

4. The Murfitt principle does not support the removal of a building or other operational development that is "a separate development in its own right". Where the operational development has itself brought about the change of use, the Murfitt principle is not engaged, Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2010] PTSR 1296 cited.

5. That the Murfitt principle would create "useless" buildings, beyond the reach of enforcement action. The Court of Appeal states that in such circumstances, the local planning authority may need to consider whether it is expedient to enforce against the material change of use even though the building itself has become lawful and that this would be a matter of judgement for the authority. The court further states that local planning authorities would need to consider whether a grant of planning permission for a different use of the building, or even, with suitable conditions, the same use, would accord with relevant policy, or alternatively requiring the removal of the building under s102 of the 1990 Act, with the requisite payment of compensation, would be the appropriate course to take.

Conclusion

Whether the Murfitt principle is engaged in a particular case will be a matter of fact and degree for the decision maker. Local planning authorities, when taking enforcement action, will need to carefully exercise its judgement in understanding and correctly applying the Murfitt principle.

S155 of The Levelling Up and Regeneration Act 2023 amends the statutory time limits for enforcement action in s171B from four years to ten years. However, the transitional provisions provides that the different time limits for operational development and material change of use will continue to apply to planning breaches that occurred and were substantially completed before 25 April 2024.

For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.