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

An enforcement notice directed at an unauthorised material change of use may, under section 173(4)(a) of the Town and Country Planning Act 1990, require removal of operational works only where they are subordinate or secondary to that use. The works must be genuinely ancillary, incidental, or facilitative of the change of use.

The Murfitt principle does not permit removal of a separate operational development which is fundamental to, or has caused, the change of use. It operates within, and cannot circumvent, the distinct statutory enforcement periods for operational development and changes of use. Although its application involves fact and degree, the decision-maker must first direct itself correctly on its legal limits.

Buckinghamshire Council issued an enforcement notice alleging an unauthorised material change from agricultural to residential use. It required the cessation of residential use and the demolition of a bungalow, “The Goose House”, built without permission more than four years before the notice.

An inspector dismissed the respondents’ enforcement and certificate-of-lawfulness appeals. He held that the bungalow was integral to, and part and parcel of, the unauthorised residential use, so that its demolition could be required despite its own immunity from enforcement as operational development.

Lieven J allowed the respondents’ statutory appeal and application, quashing the inspector’s decisions: [2023] EWHC 2053 (Admin). The Secretary of State appealed. The central issue was whether the inspector had misapplied the Murfitt principle governing restoration requirements following an unauthorised material change of use.

Appeal dismissed. The judge was right to hold that the inspector had made an error of law in applying the Murfitt principle.

1. The principle is a limited application of the restorative power in section 173(4)(a) of the Town and Country Planning Act 1990. An enforcement notice directed at an unauthorised material change of use may require removal of associated operational works, notwithstanding their separate four-year immunity, only where those works are truly ancillary, incidental, subordinate, or secondary to that use.

2. The principle cannot override Parliament’s different time limits for operational development and changes of use in section 171B. It does not extend to operational development which is a separate development in its own right, or which is fundamental to or causative of the change of use. To allow such works to be removed under the longer period for a change of use would negate the statutory immunity for operational development.

3. The Court followed the governing approach in Murfitt and Kestrel Hydro. References in those authorities to works being integral or part and parcel of a change of use did not dispense with the requirement that the works be ancillary in the relevant sense. The observations of Richards LJ in Welwyn Hatfield, though obiter, were correct and supported that conclusion.

4. Whether the principle applies in an individual case remains a question of fact and degree. But an inspector must first identify and apply the correct legal limits. The task is not merely an evaluative planning judgment reviewable only for irrationality.

5. The bungalow was a new dwelling built on previously undeveloped land. The residential use was the consequence of its construction; the building was not merely ancillary to that use. The inspector wrongly recast the test as whether the building was supportive of, integral to, or part and parcel of the use. That misdirection was fatal to his decision on the ground (d) appeal. It was therefore unnecessary to decide the respondents’ alternative irrationality challenge.

The court noted that section 115 of the Levelling-up and Regeneration Act 2023 has changed the enforcement periods for future cases, but did not affect this pre-25 April 2024 breach.

• Court of Appeal (Civil Division) Dismissed the Secretary of State’s appeal and upheld the quashing of the inspector’s decisions: [2024] EWCA Civ 467.
• High Court, Planning Court Lieven J allowed the statutory appeal and application, holding that the inspector had erred in law by requiring demolition under the Murfitt principle: [2023] EWHC 2053 (Admin).