This important decision concerns the scope of the so-called Murfitt principle. Under that principle, an enforcement notice can require the removal of operational (or ‘built’) development when enforcing against an unlawful change of use. In some cases, the Murfitt principle would allow for the removal of that operational development even where it is immune from enforcement or would not involve development at all. 

The Court of Appeal confirmed the “narrowness” of the Murfitt principle (paras 19 and 40). It does not, and cannot, override the four-year immunity period for operational development (para. 38). The principle does not extend to operational development that is more than merely ancillary or secondary to the change of use, and is instead fundamental to or causative of that change of use (para. 37). 

The Inspector, on the facts, had erred in finding that an enforcement notice could require the removal of operational development in the form of the erection of a dwellinghouse, (which had become immune from enforcement in its own right) through an enforcement notice which was directed at the change of use to residential use of the land on which the dwelling was build (which had not acquired immunity from enforcement). The dwelling was fundamental to, or causative of that change of use. Its removal could not be authorised under the Murfitt principle. 

The Court of Appeal upheld the decision of Lieven J. in the High Court, who quashed the Inspector’s decision on a claim made by Ian Caldwell.

The judgment will be of significant interest to those involved in planning enforcement. 

Douglas Edwards KC represented the Respondents at Inquiry and in the High Court. He led Michael Rhimes in the Court of Appeal.  They were instructed by Susan Ring of Goodenough Ring.