High Court judge rules inspector erred in law over scope of power to require removal of operational development

The High Court has decided that a planning inspector erred in law over a dispute about an enforcement notice served by Buckinghamshire Council.

Mrs Justice Lieven said in Caldwell & Anor v Secretary of State for Levelling-Up, Housing and Communities & Anor [2023] EWHC 2053 (Admin) the inspector had gone beyond statutory power when ordering the removal of a house built without planning consent.

Appellant Ian Caldwell and his company Timberstore took the case against the Secretary of State for Levelling-Up, Housing and Communities.

It concerned two challenges to decisions by the inspector to dismiss Mr Caldwell’s appeal against the enforcement notice.

He also applied for statutory review of the inspector’s refusal of an appeal over a certificate of lawful use and development under s191 of the Town and Country Planning Act 1990 (TCPA).

Lieven J said: “There is one issue in the case, whether the Inspector erred in law in relation to the scope of the power to require the removal of operational development pursuant to the power in section 173(4)(a) TCPA.”

The disputed site is on the A40 road in Beaconsfield, within Green Belt and Mr Caldwell operates a timber yard on the opposite side.

Construction of a house began in 2013 and was substantially completed in April 2014 with Timberstore and its staff having gone “to considerable lengths to conceal from [the council] that a dwelling was being constructed on the site”, the judge said. Buckinghamshire did not though argue ‘concealment’ had occurred.

The council in February 2021 issued an enforcement notice which said the site had changed from agricultural to residential use, which was an “unauthorised material change of use”.

It required Mr Caldwell to demolish the building and its incidental structures and remove all materials within six months.

Mr Caldwell appealed and told an inquiry that the house, now named Goose House, had been substantially completed more than four years before February 2021 and therefore benefited from the immunity provision in s.171B (1) TCPA, but the residential use of the site had not been subsisting for 10 years.

The inspector though concluded there had been a breach of planning control and “it is not excessive to require the removal of the building”.

Lieven J said s173(3) allows a local planning authority to require the restoration of the land to its condition before the breach took place, but the statute in s171B gives operational development, including the erection of dwelling houses, immunity from enforcement action four years after substantial completion.

She said: “In my view both the statute itself and the case law 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.”

Lieven J quashed the decision, remitted the matter to the Secretary of State and said it was unnecessary to deal with the argument the inspector's decision had been irrational.

Mark Smulian

Analysis of this case will appear on Local Government Lawyer next Friday.