Murfitt revisited

Roderick Morton examines a recent case concerning the removal of facilitating development.

The case of Caldwell and Timberstore v SSLHG and Buckinghamshire [2023] EWHC 2053 (Admin) 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.”

In Welwyn Hatfield v SSCLG (Beesley), the Court of Appeal expressed doubt that Murfitt could be used to remove a building which was itself immune but the comments were obiter. The point was not taken before the Supreme Court.

The inspector in this case found that building the house and the material change of use of land to 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.

The appellants argued, based on Beesley, that Murfitt was limited to associated works and that building the house of a scale beyond associated works. PINS argued that it was not so limited, that it was a matter of fact and degree for the inspector and not one in which the court should intervene.

Mrs Justice Lieven undertook a review of the line of Murfitt cases which culminate in Kestrel Hydro. She concluded that, while the Murfitt doctrine could require removal of immune operational development, it could not override the statutory regime under s171B. 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 it cannot). To use an enforcement notice to achieve removal of principal operational development was, she said, contrary to the statutory scheme.

The decision was remitted for redetermination.

Comment

For some years, some inspectors allowed removal of buildings on MCOU notices and others did not; decisions were inconsistent. More recently, following Kestrel Hydro, PINS’ guidance in the Inspectors’ Manual has cautioned against it and anecdotal evidence is that most such notices are now amended to remove such requirements. The robust decision of the inspector in this case, and PINS’ decision to defend it at appeal, was therefore surprising but welcome. The High Court reversal, couched in equally robust terms, is not.

To exclude all operational development which causes the material change of use from the realm of Murfitt is difficult to understand. What could be more integral to a change of use than the building of the thing which caused it to happen?

The question of which breach is the primary breach is somewhat “chicken and egg”. In many cases, it will be the creation of a new planning unit with a separate use which is the fundamental breach, rather than the construction of the building itself. In “beds in sheds” cases, for instance, an outbuilding built as a separate dwelling is unacceptable where the same building as an ancillary dwelling is fine. It is arguably the use which is the primary breach. Yet the construction of the outbuilding clearly causes the breach. So to outlaw notices which seek removal of the building simply because the building “caused” the breach seems excessive.

Similarly, the judge seems to have been concerned that the council was somehow attempting to override the statutory regime. But the council had a choice of which breach to enforce against. It chose to attack the change of use of land. There is nothing underhand in that.

Here the inspector reached a decision that the change in use was the primary breach and addressed the notice accordingly. The High Court has interfered with that conclusion. Ordinarily, this would seem like a case that needs an appeal.

The Levelling Up and Regeneration Bill will, it is hoped, equalise immunity periods at 10 years. That will encourage councils simply to attack the operational development and will reduce the impact of this decision. Nevertheless, there will still be situations where it is appropriate to attack the material change of use; the wide language in which this decision is couched has potential to make it harder for such notices to be fully effective.

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.