South Darenth Farms and Cold Store Company Limited v The Secretary of State for Housing, Communities and Local Government & Ors

The Murfitt principle may permit an enforcement notice directed at an unauthorised material change of use to require removal of associated works, even where those works benefit from permitted development rights. The works must be integral to, or part and parcel of, the unauthorised use, and must not be more than ancillary to it. Permitted development rights do not create an exceptional class of works immune from that principle. Permission for a statutory appeal may be refused where, despite an identified error of law, the decision-maker would necessarily have reached the same conclusion.

The claimant sought permission under section 289 of the Town and Country Planning Act 1990 to appeal an Inspector’s decision upholding, subject to modification, an enforcement notice concerning a mixed commercial use of land. The notice required cessation of the use and removal of associated works, including retaining walls and fences.

The Secretary of State accepted that the Inspector had erred by applying article 3(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015 to permitted development rights under Class A of Part 2 of Schedule 2. The central issues were whether the Murfitt principle nevertheless justified removal of the works and, alternatively, whether the Inspector’s decision would necessarily have been the same absent the error.

1. The application for permission to bring the section 289 appeal was refused. The Secretary of State accepted that the Inspector had erred in applying article 3(5) of the Town and Country Planning (General Permitted Development) (England) Order 2015 to the walls and fences.

2. The Murfitt principle, reflected in section 173(4)(a) of the Town and Country Planning Act 1990, permits an enforcement notice directed at an unauthorised material change of use to require restoration by removal of associated works as well as cessation of the use. The principle applies where the works are integral to, or part and parcel of, the unauthorised use, but not where they were undertaken for another lawful use and remain capable of lawful use after the unauthorised use ceases.

3. The existence of permitted development rights does not create an exception to the Murfitt principle. The relevant question remains whether the works are integral or ancillary to the unauthorised use. The enforcement notice described the walls and fences as associated development facilitating that use, and no evidence suggested another purpose. The Inspector would inevitably have found them to be part and parcel of the unauthorised use.

4. The reasoning in Duguid and Staffordshire CC v Challinor did not establish a general right to assert permitted development rights against an enforcement notice after an unsuccessful enforcement appeal. Those authorities did not prevent the application of the Murfitt principle in this case.

5. Alternatively, applying the approach in Simplex GE (Holdings) Ltd, the Inspector would necessarily have reached the same conclusion because of his findings concerning inappropriate development, landscape and neighbour harm, and substantial Green Belt harm. The error therefore did not justify permission for a statutory appeal.

The judgment itself was the first-stage determination of an application for permission to bring a statutory appeal under section 289 of the Town and Country Planning Act 1990. The underlying Inspector’s decision of 6 May 2025 had dismissed South Darenth’s appeal against Dartford Borough Council’s enforcement notice. Permission was refused by the High Court.