[2025] EWHC 2646 (Admin)

In order for the Murfitt principle to apply, “the works concerned [need to be] are integral to or part and parcel of the unauthorised use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceasedIn order for the Murfitt principle to apply, “the works concerned [need to be] integral to or part and parcel of the unauthorised use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased”.

The Applicant relies upon the Inspector not having expressed a positive finding in the Decision Letter that the walls and fences are integral or “part and parcel” of the unauthorised use. It is said on behalf of the Applicant that he simply did not grapple with the issue at all. However, an Inspector is not obliged to record every point of contention and, having come to the erroneous conclusion he did with respect to Article 3(5) of the GPDO, it is of no surprise that he did not expressly deal with this point in the Decision Letter in the five paragraphs where walls and fences are mentioned (paragraphs 41, 43, 46, 49 and 51).

The wording in the Enforcement Notice was that the “retaining wall, fences and entrance gate” were part of the associated development and in the direction of what was required to be done, the retaining wall and the fences were all described as items that facilitated the unlawful use. The Enforcement Notice was therefore clear that the fences and retaining wall were associated development facilitating the change of use and there was no evidence put before the Inspector by the Applicant that the fences and wall were anything other than facilitative. In my judgment, it is inevitable that had it been expressed, the Inspector would have found that the fences and wall were “part and parcel” of the unauthorised use.

The Applicant further contends that, by reason of the determination in Staffordshire CC v Challinor [2008] 1 P & CR 10, and the earlier decision of Duguid v Secretary of State for the Environment, Transport and the Regions (2001) 82 P & CR 8, an Enforcement Notice cannot remove permitted development.In Duguid, it was held by Ward LJ that “no enforcement notice can take away legally permitted rights” and that all else flowed from that central proposition. He further stated “There is … absolutely no need at all to refer to the GPDO because it operates as a matter of law within parameters that are certain, being those defined by the order itself.” The Applicant submits that as a consequence, GPDO rights are retained. In Challinor Keene LJ referred back to Duguid and set out that:

“… it was unnecessary to amend an enforcement notice so as to safeguard those use rights which arose as a result of the permission granted generally by the General Permitted Development Order 1995… for a temporary use of land for not more than a certain number of days in the year. It was in that context, and indeed in the course of a statutory challenge under s. 289 to an inspector’s decision on an appeal against an enforcement notice, that Ward LJ said that such a notice could not take away legally permitted rights…

“… an enforcement notice will be interpreted so as not to interfere with permitted development rights under the General Development Permitted Order or with rights to use land for a purpose ancillary to a principal use which is itself not being enforced against… the authorities go no further than that and certainly do not establish any general right to assert existing use rights at a time when the enforcement notice has come into effect after an unsuccessful appeal or in the absence of an appeal.”

It is the Applicant’s case that it is clearly arguable that the Class A development was permitted by the GPDO and that the Enforcement Notice cannot interfere with those rights.

While neither Challinor nor Duguid were referred to in Kestrel Hydro or the later case of Caldwell, it is inconceivable that Lindblom SPT would not have Challinor in mind. As he set out, the point that was at the heart of the Kestrel Hydro appeal was the circumstances in which “an enforcement notice issued by a local planning authority against an unlawful change of use require the removal of structures connected with that unlawful use?”. In Caldwell, upholding the decision of Holgate J (as he then was) allowing the appeal against the determination of the Inspector, it was held that while the Murfitt principle was not to be overstated as it operated within, and did not override, the statutory scheme for enforcement, it embodied the substance of the remedial power in section 173(4)(a) of the TCPA 1990 to require restoration of the land to its condition before the breach of planning control took place. While it did not extend to works that were more than ancillary (for example a development in its own right or works that were fundamental to or causative of the change of use), it could include the removal of operational development which could not be enforced against on its own – in the case of Caldwell the example was given of the four-year time limit in section 171B.

In my judgment, the Murfitt principle applies equally where the works concerned, in this case walls and fences, benefit from Permitted Development rights. For the Murfitt principle to apply, the works need to be integral to, or part and parcel of the unauthorised use, and must not be more than ancillary. The existence of GPDO rights does not create an exceptional class, and such a finding would, in my judgment, be contrary to the principles set out by Stuart-Smith J in Somak referred to as “good law” by Lindblom LJ in Kestrel Hydro.