Ian Caldwell & Anor v The Secretary of State for Levelling-Up, Housing and Communities & Anor

The power to restore land after an unauthorised material change of use may extend to removing operational development immune from direct enforcement. The Murfitt principle remains subject to the statutory scheme and its separate enforcement time limits. It applies to works that are secondary, associated with, and facilitative of the unlawful use. It does not extend to principal operational development that itself gives rise to, or is fundamental to, the change of use. Whether the limitation applies is a matter of fact and degree.

The claimants challenged decisions by a planning inspector concerning an enforcement notice and a certificate of lawful use and development. The enforcement notice alleged an unauthorised material change of use from agricultural to residential use and required cessation of the use and demolition of a dwelling and associated structures.

It was common ground that the dwelling had been substantially completed more than four years before the notice, so direct enforcement against the building was time-barred under section 171B(1) of the Town and Country Planning Act 1990, while the residential use had not acquired ten-year immunity. The central issue was whether section 173(4)(a) permitted removal of the dwelling as part of enforcement against the material change of use.

1. The claim succeeded. The inspector’s decision was quashed and the matter was remitted to the Secretary of State for redetermination.
2. The restoration power in section 173(3) and (4)(a) of the Town and Country Planning Act 1990 may require removal of operational development that could not be enforced against independently because the limitation period had expired. The power operates within, and cannot enlarge, the statutory scheme.
3. The works must be integral to, or part and parcel of, the unauthorised use. The cases in which the principle had been applied involved works that were secondary, ancillary, associated with, or facilitative of the change of use.
4. The principle does not extend to operational development that is itself the source of, or fundamental to, the material change of use. The boundary is assessed as a matter of fact and degree.
5. The inspector erred by failing to recognise that the dwelling was the source of, and fundamental to, the residential use. Requiring its removal through an enforcement notice directed at the material change of use went beyond the statutory power and circumvented the separate four-year immunity for the building.
6. The alternative irrationality ground did not require determination.

This was a first-instance statutory challenge and section 289 appeal in the Administrative Court. No further appellate history is stated in the judgment.