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

The Court of Appeal held that an inspector misdirected himself in applying the Murfitt principle when he required the demolition of a bungalow erected without planning permission. The court reaffirmed that the principle in Murfitt v Secretary of State permits an enforcement notice directed at an unauthorised material change of use to require removal of operational works only where those works are ancillary, part and parcel of or integral to the change of use and not where the operational development is itself the source of or causative of the change of use. The relevant statutory provisions included sections 55, 171B, 172, 173(3) and 173(4)(a), and ground (d) of section 174 of the Town and Country Planning Act 1990.

The inspector’s reasoning treated the erection of the dwelling as properly removable under Murfitt despite findings that the dwelling (and an associated utility cabinet) would be immune from enforcement as operational development under section 171B(1). The court concluded that this misdirected the inspector as to the limits of Murfitt and the interplay with the statutory immunity in section 171B, and dismissed the Secretary of State’s appeal.

Background and facts:

The appeal concerned an enforcement notice issued by Buckinghamshire Council in February 2021 in respect of land in the Metropolitan Green Belt where a bungalow known as "The Goose House" and several ancillary structures were built without planning permission in 2013–2014. The enforcement notice required cessation of residential use and demolition of the bungalow and certain incidental structures. The council was aware of the building works in 2014 but did not issue the notice until 2021.

Parties and procedural history:

• The appellant was the Secretary of State for Levelling Up, Housing and Communities; the respondents were Mr Ian Nivison Caldwell and Timberstore Ltd.
• The inspector dismissed the section 174 appeal against the enforcement notice (upheld the notice, with amendments) and dismissed related appeals under section 195 and 191.
• Lieven J. in the Planning Court quashed the inspector’s decision ([2023] EWHC 2053 (Admin)). The Secretary of State appealed to the Court of Appeal under section 289 (with a collateral challenge under section 288 to quash the decision dismissing the section 195 appeal).

The nature of the application / relief sought:

The appellant sought to overturn the Planning Court’s order quashing the inspector’s decision and to reinstate the inspector’s decision upholding the enforcement notice, arguing that the inspector had correctly applied the Murfitt principle and that the demolition requirement was lawful.

Issues framed by the court:

1. Whether the inspector erred in law in relation to the scope of the power to require removal of operational development pursuant to section 173(4)(a) as explained in Murfitt and subsequent authorities.
2. Whether, alternatively, the inspector’s application of the Murfitt principle was irrational (Wednesbury review).

Court’s reasoning and conclusions:

The Court of Appeal analysed the statutory scheme (notably the distinction in time-limits under section 171B between enforcement against operational development and against material change of use) and the line of authority from Murfitt, Perkins, Somak Travel, Newbury District Council, Welwyn Hatfield and Kestrel Hydro. The court emphasised that Murfitt operates within the statutory framework and is limited to operational works that are ancillary, part and parcel of, or integral to a change of use, not to operational development that is itself fundamental to or causative of the change of use.

On the facts the inspector had acknowledged that the bungalow and an associated utility cabinet would, viewed in isolation, be immune from enforcement under section 171B(1), but nonetheless proceeded on an understanding of Murfitt that did not preserve the essential ancillary/incidental limitation. The inspector therefore misdirected himself and misapplied the Murfitt principle. Because of that legal error the inspector’s decision on ground (d) was flawed. The Court of Appeal dismissed the Secretary of State’s appeal, upholding Lieven J.’s quashing of the inspector’s decision. The court did not decide the separate irrationality argument.

Contextual note: the judgment records the subsequent statutory amendment by section 115 of the Levelling-up and Regeneration Act 2023 (increasing the time-limit for enforcement against operational development to ten years) and transitional regulations; the parties agreed those changes did not affect the outcome of this appeal.

Appeal dismissed. The inspector misdirected himself on the scope of the Murfitt principle by failing to apply its essential limitation that only operational development which is ancillary, part and parcel of, or integral to an unauthorised change of use can be required to be removed under section 173(4)(a). Operational development that is itself the source of or causative of the change of use falls outside Murfitt and is governed by the four-year immunity in section 171B(1). The inspector’s misunderstanding was a legal error fatal to his decision on ground (d).

Appeal to the Planning Court: Lieven J. quashed the inspector’s decision ([2023] EWHC 2053 (Admin)). The Secretary of State appealed to the Court of Appeal (this judgment: [2024] EWCA Civ 467), which dismissed the appeal and upheld the planning court’s order.