Enforcement notices and the Murfitt principle

May 15, 2024

Roderick Morton analyses a Court of Appeal ruling on whether a planning inspector who determined an appeal against an enforcement notice, misapplied the principle in Murfitt.

The decision in Caldwell and Timberstore v SSLUHC [2024] EWCA Civ 467 is the appeal by PINS from the High Court decision of Mrs Justice Lieven to remit an inspector’s decision for redetermination based on the inspector’s alleged failure to consider the boundaries of the Murfitt principle. Our article on the High Court decision, in the August 2023 NAPE newsletter, can be found here.

In brief, the case involves a timberyard in a Green Belt location in which the appellant constructed a dwelling. An enforcement notice was issued alleging the material change of use of the land to residential use and the carrying out of operational development comprising construction of a dwelling. The notice required the residential use to cease and required the dwelling to be demolished.

The notice was appealed. It was common ground that the house had been built more than 4 years before the enforcement notice but that residential use of the land had not subsisted for 10 years. The operational development breach was immune but the use breach was not. Removal of the house was justified under the doctrine in Murfitt.

The doctrine in Murfitt allows for the removal of items which facilitate the material change of use of the land, even when those items are immune or are not, themselves, development. However, limitations on that doctrine have been imposed in various cases, not least Kestrel Hydro. In that case, the Court of Appeal decided that Murfitt applies only to works which are “integral to or part and parcel of the unauthorised use…It does not embrace operational development of a nature and scale exceeding that which is truly integral to the material change of use, nor does it override…s171B.”

The inspector found that building the house and the material change of use of land to separate residential use were not entirely separate developments. The former was integral to the latter. The principal form of development was the material change of use of land, the construction of the building could be regarded as associated works. The remedy of the breach required return of the land to the pre-breach condition and the notice was therefore not excessive in requiring removal of the building.

In the High Court, Mrs Justice Lieven concluded that, while the Murfitt doctrine could require removal of immune operational development, it could not override the statutory regime under s171B TCPA 1990. She made a distinction between works which were “secondary, ancillary or associated with the change of use” (which a notice can require to be removed) vs works which were “causative of the change of use” (which, she said, it cannot). To use an enforcement notice to achieve removal of principal operational development was, she said, contrary to the statutory scheme.

PINS appealed to the Court of Appeal. The inspector’s decision had contained a carefully worded section in which he considered whether the development was truly integral to the change of use and came to the conclusion that it was. There was, said PINS, no basis for restriction of Murfitt to works which were causative so the inspector had not misdirected himself. The inspector had reached a balanced and reasonable planning judgment with which the court should not interfere.

Mr Caldwell argued, following Mrs Justice Lieven’s reasoning, that the case law, right back to Murfitt, did not allow for removal of operational development which was fundamental or causative of the change of use.

The Court of Appeal sided with Mr Caldwell. It was at pains to make clear that Murfitt remains good law. But it made five points.

Murfitt operates within the boundaries of s171B which (at the time) set different limits for enforcement against operational development and material changes of use.
The principle is based on the power of an enforcement notice to require restoration of land to its pre-breach condition and is limited to matters which go to that power.
Case law indicates an intention to narrow the Murfitt principle and confine it within the statutory scheme. Various words have been used in various cases (eg the operational development has to be “ancillary”, “part and parcel”, “integral”, or “associated” with the change of use and not work “in its own right” or “fundamental or causative of” the change of use).
Where the operational development has itself brought about the change of use, the Murfitt principle is not engaged.
That the retained building (operationally immune but not able to be used as a dwelling) might be useless is not a reason to allow a wider interpretation of Murfitt. Planning permission could be considered for an alternative use. Or the s102 power could be used, with payment of compensation.

The court found, therefore, that the inspector had misdirected himself on the law. As such, the court could interfere with his decision. The appeal was dismissed.

Comment

While the court was at pains to make clear that Murfitt remains good law, this decision leaves it rather unclear. Good for lawyers perhaps but not good law for enforcement officers to apply.

The court offered no test to establish whether development is or is not fundamental or causative of the change of use (or integral or whatever word is used; apparently they all mean the same thing). It is a matter of fact and degree for the inspector. But not if the inspector misdirects themselves as to what the test should be; which, without a definitive test from the court, seems entirely likely.

From the examples in the cases cited, with approval, by the Court of Appeal, we can discern the following.

Dwellings are fundamental operational development in their own right, it seems. Even if, as here, they were only constructed to house an employee working in the timberyard…
Yet building of a cabin on a leisure plot is not. Even one with a kitchen and bathroom…
Hardstanding, removal of machinery, building of cabins for adult member clubs, is not. Even if, as in Murfitt, the heavy goods vehicles (parking of which was enforced against) could not have been parked without the hardstanding. Isn’t that fundamental?

If the effect of the court’s linguistic struggle is difficult to understand, its reasoning for engaging in it at all is even more so. The court thought it was relevant that Parliament made a distinction between the immunity periods for operational development and material changes of use. That would be the same Parliament that has recently removed that distinction with the LURA changes.

And to allow immunity periods to affect what the notice can require seems like the tail wagging the dog. The mantra is that the requirements of the notice should match the breach. In this case, the council decided to enforce against the change of use of land; that was its decision and it carried a 10 year immunity period. To superimpose the 4 year period of the operational development seems to second guess the council’s decision as to which breach to attack. In effect, the court has decided that the operational development is the “main” breach and its reasoning seems based on the immunity outcome, rather than the facts at the site. Not only is that the wrong way round, it is bizarre for the court to decide the point, rather than the inspector who actually visited the site.

Unfortunately, the problem does not simply go away following to the LURA changes. It is true that, post LURA (and ignoring the transitional provisions), a council in this situation could simply enforce against the operational development. But where the change of use is the main problem, it is likely that a council will want to enforce against the change of use. Previously, councils would have dealt with accompanying operational development as Murfitt items in the notice requirements. Now, it seems, if we get that wrong and it turns out the operational development was in fact fundamental, there will be a ground (f) challenge arguing that the steps of the notice exceed the breach. To avoid this, councils will now need to consider enforcing against operational development separately. That gives rise to additional problems though as the operational development may be assessed against different policies to the material change of use (eg a “bed in shed” may, operationally, be acceptable but its separate use is not).

Murfitt is judge-made law, not a statutory principle. The Court of Appeal is bound by judge-made law. The Supreme Court has more leeway, as we saw with Hillside. The Caldwell decision allows a distinction which no longer exists (s171B) to create “nitpicking” practical problems for enforcement officers and inspectors. Whether there is appetite for a further appeal remains to be seen.

Roderick Morton is a partner at Ivy Legal. This article first appeared in Ivy Legal's monthly column for the Royal Town Planning Institute's Network for Planning Enforcement (NAPE) newsletter.