[2025] EWHC 2646 (Admin)

The basis of South Darenth’s application for permission is that the fencing and gates with Fairfield were within Class A, Part 2, Schedule 2 to the GPDO and that this Class is not related to either a building or use and so article 3(5) of the GPDO can have no application. Article 3(5) of the GPDO did not, and could not, apply as the lawfulness or otherwise of any existing use of the Land was irrelevant to the operation of Class A. Consequently, the Inspector’s finding that the existing use of the Land was unlawful did not prevent South Darenth from relying on Class A. South Darenth therefore contends that the Inspector erred in law.

The Secretary of State accepts, through Counsel’s skeleton argument, that the permission granted by Class A is not a permission “granted in connection with an existing use” and that the Inspector did therefore err in applying Art. 3(5)(b) to the walls and fences. However, the Secretary of State resists the grant of permission to bring the statutory appeal on the basis that the Decision of the Inspector would necessarily have been the same had the Inspector not so erred, and permission should therefore be refused. The Secretary of State relies upon the reasoning in Simplex GE (Holdings) Ltd v Secretary of State for the Environment[2017] PTSR 1041 (CA), and contends that the Inspector would necessarily have come to the same conclusion even though a reason for giving the decision was incorrect.

South Darenth has said that it is not possible to say what conclusions the Inspector might have reached had he not incorrectly applied Art. 3(5)(b) of the GPDO to the walls and fences; and that if the Inspector had found that the walls and fences “should not be enforced against”, their assessment of the visual impact of the unlawful use of the Site might have been different. The contrary argument by the Secretary of State is that the walls and fences were to be enforced against because they were integral to or part and parcel of the unlawful use.   The Secretary of State relies upon the repeated references in the Enforcement Notice to the walls and fences “facilitating” the material change of use that had taken place without planning permission and contends that the ground (c) appeal could not have succeeded before the Inspector even had he not made a bad point with respect to Article 3(5) of the GPDO.

The Secretary of State relies upon the Murfitt principle (Murfitt v Secretary of State for the Environment (1980) 40 P & CR 254) where consideration was given to an enforcement notice in which the local planning authority had alleged a material change of use of a farmyard to use for a plant hire and haulage business. The notice included the removal of hardcore placed on the land in association with the enforced against use. The appellant contended that the enforcement notice had not been directed to the carrying out of operational development and that if such a breach of planning control had been alleged enforcement could only have been taken against development carried out within a period of four years preceding the service of the notice. Thus the hardcore laid on the site more than four years before the service of the enforcement notice would be exempt from any requirement for its removal. The Secretary of State contended that the hardcore was “so much an integral part of the use of the site” that it could not be considered separately. Stephen Brown J said this:

“… an enforcement notice shall specify, first, the matters alleged to constitute a breach of planning control, and, secondly, the steps required by the authority to be taken in order to remedy the breach – that is to say, steps for restoring the land to its condition before the development took place… I do not accept the criticism made by the appellant that the requirement to restore the land to its condition before the development took place by the removal of the hardcore is one that is ultra vires”

Waller LJ said:

“… where it is [a question of] an ancillary purpose, the planning matter might leave land, as in this case, in a useless condition for any purpose, and, therefore, it is logical that, when the use that has no planning permission is enforced against, the land should be restored to the condition in which it was before that use started.”

In Somak Travel Ltd v Secretary of State for the Environment(1987) 55 P & CR 250, the enforcement notice required the cessation of office use in a maisonette above a ground-floor shop and the removal of a spiral staircase between the ground floor and the first. The physical works, namely the removal of an internal staircase, were “outside the scope of planning control” because they did not constitute “development” at all (and therefore did not require planning permission). The inspector had decided that the removal of the staircase was necessary to restore the maisonette to residential use. Stuart-Smith J (as he then was) applied the Murfittprinciple and held that the enforcement notice had been entitled to require the removal of the internal staircase. He reasoned as follows:  

“The test laid down in that case by Stephen Brown J, that the operational activity should be part and parcel of the material change of use or integral to it, is one which seems to me to be satisfied in this case. It must, of course, be a question of fact in each case, but there seems to me to be plainly material upon which the inspector could come to the conclusion, as he clearly did that [the staircase] was integral to [the change of use]…

It seems to me that if one adopts the test, whether or not it was integral to or part and parcel of the change of use from residential to office accommodation, the test is satisfied.”

In Murfitt the original operational development of placing the hardcore on the land was unlawful but it became immune from action because of the four year limitation period. Stuart-Smith J held that the two things come to the same result: “that is a distinction without a difference.”

Lindblom LJ, as he then was, set out the principle in Kestrel Hydro v SSCLG[2023] PTSR 2090 in this way:

“What, then, is the principle? It is that an enforcement notice directed at a breach of planning control by the making of an unauthorised material change of use may lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself—provided that the works concerned 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 ceased. But it can extend to unauthorised changes of use where the associated works, if viewed on their own, would have become immune from enforcement under the four-year rule in section 171B(1) (as in Murfitt) or would be outside the scope of planning control (as in Somak Travel Ltd 55 P & CR 250). In every case in which it may potentially apply, therefore, it will generate questions of fact and degree for the decision-maker. Whether it does apply in a particular case will depend on the particular circumstances of that case”.

He further stated that:

“…the proposition that when a local planning authority is properly enforcing against a material change of use of premises where that change of use has entailed subsequent physical works to facilitate and support it, and those works are thus integral to the unauthorised use, the statutory scheme allows the enforcement notice to require the removal of such works as well as the cessation of the use itself”. 

Lindblom LJ also cited Clive Lewis QC (as he then was) sitting as a Deputy High Court Judge in Bowring [2013] JPL 1417, where he relied upon Somak to say that “where an enforcement notice is served alleging the making of a material change of use of land, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use.” However, he also said “it will not be sufficient if the works are integral to or part and parcel of the present unauthorised use of land if the works had been undertaken for a different, and lawful, use and could be used for that other, lawful use even if the unauthorised use ceased.” Lindblom SPT referred to the Murfitt principle in Caldwell v SSLUHC[2024] PTSR 1761. At paragraphs 39 to 43 Lindblom SPT identified five points in relation to the principle, which included the following:

“(1)

The Murfitt principle is judge-made and “embodies the remedial power in [s. 173(4)(a) of the 1990 Act] to require the restoration of the land to its condition before the breach of planning control took place. It reflects the substance of that remedial, or restorative, provision. It represents a practical means of remediating the unauthorised change of use”, but 

(2)

The principle does not extend to works that are more than merely ancillary or secondary and are instead fundamental to or causative of the change of use itself.”

In Cash v SSCLG[2012] EWHC 2908 where the applicant had argued on appeal before an inspector that a 1.8m fence that he had erected around the compound within which the development was located was permitted development under Class A (and not part and parcel of the development that required planning permission), such that the local planning authority had been wrong to serve an enforcement notice requiring the removal of the fence. The Inspector’s decision to reject that argument was upheld on a challenge to the High Court, Miss Belinda Bucknall, the Deputy High Court Judge recording the Inspector’s finding that:“There seems little doubt that the fence was erected as part of the development as a whole, and not as a separate operation benefitting from permitted development rights. There was no alternative reason given for its presence on the site … it appears to be an integral part of the development and it is a very noticeable feature of the development as a whole.”The applicant contends that the decision inCashshould be treated as beingper incuriamas it failed to consider the implications of Staffordshire CC v Challinor[2008] 1 P & CR 10 orDuguid v Secretary of State for the Environment, Transport and the Regions (2001) 82 P & CR 6.

The Secretary of State contends in this case that whether or not the walls and fences benefitted from permitted development rights, there was a breach of planning control because the walls and fences were integral to the unlawful use and that there was nothing in the evidence before the Inspector that suggested that the walls and fences were fundamental or causative of the unlawful change of use so as to take it outside the Murfitt principle (see Lindblom SPT in Caldwell) rather than being merely ancillary or secondary to the unlawful use.