The scope of the 'Murfitt' principle

The Court of Appeal has given guidance on the scope of the ‘Murfitt’ principle. Saira Kabir Sheikh QC and Ned Westaway explain the ruling.

The Court of Appeal has handed down judgment in Kestrel Hydro v SSCLG [2016] EWCA Civ 784 a case that raises an important issue about the operation of Part VII of the Town and Country Planning Act 1990. The case concerned an enforcement notice against Kestrel Hydro’s change of use of premises to a mixed use for residential purposes and a private members’ club for adults, in the Green Belt.

The main issue on appeal was whether the enforcement notice could properly require the removal of various operational development for which the time period for enforcement action in s.171B(1) of the Town and Country Planning Act 1990 had elapsed. The appellant argued that enforcement powers should not be used to bypass the deliberate anomaly in s.171B whereby material changes of use can only be enforced against within 10 years, but operation development within four.

This was the first time that the Court of Appeal had been asked to consider the scope and correctness of the approach of the Divisional Court in Murfitt v SSE (1980) 40 P & CR 254.

Lindblom LJ, with whom McFarlane LJ agreed, upheld the principle, which he re-stated at para.28 in the following terms:

“that an enforcement notice directed at a breach of planning control by the making of an unauthorized material change of use may lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself – provided that the works concerned are integral to or part and parcel of the unauthorized use.”

The Court accepted that the principle will not embrace “operational development of a nature and scale exceeding that which is truly integral to a material change of use as the alleged breach of planning control” (para.30), but Lindblom LJ considered that the underlying question is a matter of fact and degree for the decision-maker.

The Court of Appeal also dismissed Kestrel Hydro’s second ground of appeal, that the Inspector had misapplied ground (f) by not properly considering the question of necessity and/or had failed to have adequate regard to Article 1 of Protocol 1 to the ECHR.

Kestrel Hydro are seeking permission for the matter to be heard by the Supreme Court.

Saira Kabir Sheikh QC and Ned Westaway are barristers at Francis Taylor Building. They appeared for the appellant.