Hydro, R (on the application of) v Secretary of State for Communities and Local Government

An enforcement notice directed at an unauthorised material change of use may require removal of operational development which is integral to that use, even where the works could serve a former lawful use. The relevant question is whether the works were installed as part of the unauthorised use or for the former lawful use. A merely hypothetical possibility of future lawful use does not ordinarily engage proportionality so as to prevent removal, particularly where the works cause planning harm. A new legal argument requiring factual findings should generally be raised before the inspector. Decision letters need address the principal controversial issues, but need not rehearse every submission.

Kestrel Hydro challenged an inspector’s dismissal of its appeal against an enforcement notice issued by Spelthorne Borough Council. The notice required cessation of an adults’ private members’ club use and removal of associated structures and hardstanding at a Green Belt site.

The challenge concerned whether certain structures were immune from enforcement, whether their removal exceeded what was necessary to remedy the breach, whether the inspector had adequately considered public support, delay in enforcement and need, and whether the decision failed to give adequate reasons.

1. Appeal dismissed. The enforcement notice was upheld, with the Appellant ordered to pay the First Defendant’s costs assessed at £8,662.
2. Under the principles in Murfitt v Secretary of State for Environment, [1980] 40 P & CR 254, Somak Travel Limited v Secretary of State for Environment, [1988] 55 P & CR 250, and Bowring v Secretary of State for Communities and Local Government, [2013] EWHC 1115 (Admin), an enforcement notice for a material change of use may include operational development which is integral to that use, even if the development is otherwise immune from enforcement or outside planning control. The works must not have been undertaken for a different lawful use and remain capable of serving that use if the unauthorised use ceases.
3. For a single planning unit, a former lawful residential use cannot coexist in law with a subsequent unauthorised mixed use which includes residential and club elements. The relevant use is the new unauthorised mixed use.
4. The inspector’s retrospective inquiry into whether the structures would have been provided had the unauthorised change of use not occurred was permissible. It was directed to identifying the purpose and timing of the works, not to their possible future use.
5. Article 1 of the First Protocol did not require retention of structures installed for the unauthorised club use merely because they might hypothetically be used for residential purposes. Any such argument would require consideration of the likelihood of reinstatement of the former use and could not properly be raised for the first time where the necessary facts had not been found.
6. The inspector’s reasons were adequate. A decision-maker need address the main issues, but need not refer expressly to every piece of evidence. The decision letter sufficiently explained the Green Belt harm, the weight given to it, and why the claimed very special circumstances, including public support, lack of enforcement and need, did not clearly outweigh that harm.

The judgment records that the appeal was brought under section 289 of the Town and Country Planning Act 1990, with permission granted by Singh J. The High Court dismissed the appeal against the inspector’s decision.