High Court considers scope of Murfitt and Kestrel Hydro

The royal courts of justice

In a judgment handed down this morning (7 August 2023) the High Court (Lieven J) has considered the scope of an Enforcement Notice’s ability to require the removal of operational works, when it is enforcing against a material change of use.

Caldwell v SSLUHC [2023] EWHC 2053 (Admin) concerned an appeal from an enforcement notice enforcing against the material change of use of land to residential development. The enforcement notice required removal of the house that led to the material change of use, even though enforcing against the operational development of the house itself was time barred under the 4 year rule.

The enforcement notice was upheld at appeal.

In the High Court, Lieven J quashed the enforcement notice, saying at para [39]:

“In my view both the statute itself and the caselaw point 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 is reached is a matter of fact and degree. However, the Inspector here 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.

Zack Simons and Nick Grant acted for the Secretary of State.

The judgment may be accessed here.

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