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Court of Appeal reinforces statutory basis for the Murfitt principle in planning enforcement

DATE: 22 Jul 2016

When may a planning enforcement notice issued in respect of an unlawful change of use also require the removal of buildings and other structures used in connection with that unlawful use? May an enforcement notice require their removal if, as operational development, they are immune from planning control on the 4-year rule?

Since 1980, when the Divisional Court gave judgment in the case of Murfitt v Secretary of State for the Environment (1980) 40 P. & C. R. 254, the answer has been that such structures may lawfully be enforced against if they are “part and parcel” of the unauthorized change of use.

In Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784, the appellant, the operator of an adult members’ club near Heathrow Airport, submitted that the “juridical basis” for the Murfitt principle needed to re-examined. The local planning authority had issued an enforcement notice alleging a material change of use of the premises from a residential use to a mixed use including business purposes. The notice required the unlawful use to cease and the removal of various related outbuildings and other structures than had been in place for more than 4 years.

The appellant submitted that the requirement to remove the structures was ultra vires, where they had been in place for more than 4 years, as the Murfitt principle was alien to the statutory scheme. It was argued that the decision of the Supreme Court in Welwyn Hatfield Borough Council v Secretary of State for Communities and Local Government [2011] UKSC 15 had reinforced the “basic distinction” between operational development and material change of use, such that it was now clear that Murfitt had been wrongly decided.  

The appellant also submitted that the report of Robert Carnwath Q.C., as he then was, ‘Enforcing Planning Control’ (February 1989), had accepted the idea of “useless” buildings surviving successful enforcement action against unauthorized changes of use. It was said that Parliament’s acceptance of this idea emerges from the Town and Country Planning Act 1990, when the scheme of the Act is read as a whole.

Lindblom and McFarlane LJJ rejected these arguments and agreed with the Secretary of State that the “juridical basis” for the Murfitt principle in the 1990 Act is clear. Lindblom LJ said:

“23. The straightforward answer to [the Appellant’s arguments], in my view, is that the decisions in Murfitt and Somak Travel Ltd. are good law and support the course adopted by the council in this case. As I read those decisions, they do not purport in any way to modify the statutory scheme. They do not ignore the distinction between operational development and material changes of use, now in section 55(1) of the 1990 Act, or sanction any disregard of the time limits for enforcement now in section 171B, or enlarge the remedial provisions now in section 173(3) and (4). They represent the statutory scheme being lawfully applied, as in every case of planning enforcement it must be, to the particular facts and circumstances of the case in hand – which is what happened here. 

24. As Mr Gwion Lewis submitted for the Secretary of State, it is necessary in every case to focus on the true nature of the breach of planning control against which the local planning authority has enforced. It is the nature of the breach that dictates the applicable time limit under section 171B. Under section 173(1) the enforcement notice must state the matters that appear to the local planning authority to “constitute the breach …”. The nature of the alleged “breach” will also be evident in the requirements of the notice, and in any appeal against it. The provisions of section 173(3) and (4)(a) are directed to “remedying the breach”, and include, as one means of achieving that purpose, “restoring the land to its condition before the breach took place”. And the provisions for grounds of appeal in section 174 are framed in terms of the “breach” that is “constituted” by the matters stated in the notice. Central to all of these provisions is the concept of the matters that constitute the “breach”.” 

On this basis, Lindblom LJ was satisfied that the Murfitt principle “operates within the statutory scheme, not outside it” [43]. The judge also rejected the submission that the Murfitt principle, as applied in this case, had breached the appellant’s A1P1 rights: 

“54. […] If, as in this case, an inspector finds that particular works are so intimately connected to the unauthorized use as to engage the principle in Murfitt , it will be open to him to conclude that the removal of those works is appropriate, in the sense of being necessary to remedy the breach of planning control. It will not be enough simply to require the unauthorized use of the land to be discontinued. It will be necessary to require that the land be restored to its condition before the breach took place. The corollary of this is that the removal of the works associated with the unauthorized change of use will not be a disproportionate interference with the landowner's rights under article 1 of the First Protocol . Requiring the removal of such works as well as the cessation of the unauthorized use will be the minimum necessary to undo the breach of planning control. Operating in this way, the provisions of the statutory scheme – in particular, the provisions of section 173(4) and the grounds of appeal available under section 174(2) , including grounds (a) and (f) – achieve a fair balance between the interests of the landowner and the public interest in effective planning control. [..]” 

This judgment is likely to be welcomed by local planning authorities as a clear restatement, by the Court of Appeal, of one of the fundamental principles of planning enforcement. 

The judgment in full can be accessed here

Gwion Lewis acted for the Secretary of State for Communities and Local Government.