Hydro v Secretary of State for Communities and Local Government & Anor

An enforcement notice directed at an unauthorised material change of use may require the removal of associated works, even if those works would separately be immune under the four-year enforcement limit. The works must be integral to, or part and parcel of, the unauthorised use. The principle does not extend to works undertaken for a different lawful use and capable of serving that or another lawful use after the breach ends.

The classification of the breach and the requisite remedial steps are questions of fact and degree. Under ground (f), removal may be required where it is the minimum necessary to remedy the breach and restore the land. A merely hypothetical future lawful use of the works need not be preserved.

The council issued an enforcement notice alleging an unauthorised change from residential use to a mixed residential and private members’ club use. It required cessation of the mixed use and removal of hardstanding and structures erected in connection with it. An inspector upheld those requirements, subject to limited variations.

Holgate J dismissed an appeal under section 289 of the Town and Country Planning Act 1990: [2015] EWHC 1654 (Admin). The landowner appealed, arguing that the works were operational development immune after four years and that their removal exceeded what was necessary under ground (f). The central questions were whether the removal requirements were ultra vires and whether the inspector had properly applied necessity and proportionality.

1. Appeal dismissed. The enforcement notice was within the council’s powers, and the inspector’s decisions on grounds (d) and (f) were lawful.

2. An enforcement notice directed at an unauthorised material change of use may require restoration of the land to its former condition by removing associated works. This is permissible where the works are integral to, or part and parcel of, the unauthorised use. The principle recognised in Murfitt operates within sections 171B and 173 of the Town and Country Planning Act 1990; it neither alters the statutory distinction between operations and changes of use nor overrides the applicable time limits.

3. The principle may encompass works which, considered separately, would be immune under the four-year rule in section 171B(1), or would fall outside planning control. Its reach is limited. It excludes works previously undertaken for a different lawful use and capable of serving that or another lawful use when the unlawful use ends. Operational development whose nature and scale exceed what is truly integral to the change of use remains subject to the ordinary statutory regime.

4. The nature of the breach is a matter of fact and degree. Here, the undisputed findings established that the hardstanding and structures were installed after the unauthorised mixed use began, to enable or facilitate it, and not for a different lawful use. The breach therefore fell within the ten-year limit for “any other breach” under section 171B(3). Their removal could lawfully be required under section 173(4)(a).

5. Under section 174(2)(f), the question is whether the notice requires more than is necessary to remedy the breach. The inspector was entitled to rely on his earlier findings and to read the requirements collectively. He did not have to preserve structures merely because they might hypothetically serve a lawful residential use in future.

6. For a single planning unit, a former lawful use does not legally coexist with a later unauthorised mixed or composite use merely because the latter includes an element of the former use.

7. Removal of works intimately connected with an unauthorised use is proportionate where it is the minimum necessary to undo the breach and restore the land. The statutory appeal scheme thereby achieves a fair balance between property rights under article 1 of the First Protocol and the public interest in effective planning control.

1. Court of Appeal (Civil Division): Dismissed the appeal and affirmed the conclusion that the enforcement notice and the inspector’s decisions on grounds (d) and (f) were lawful: [2016] EWCA Civ 784.
2. Administrative Court, Planning Court: Holgate J dismissed the landowner’s appeal under section 289 of the Town and Country Planning Act 1990: [2015] EWHC 1654 (Admin).
3. Planning inspector: Dismissed the appeals on grounds (a) and (d), varied the notice on ground (f) by removing the requirement to resume residential use, and extended the compliance period under ground (g) from six to 12 months.