Court of Appeal confirms 'Murfitt' principle


Ashfords LLP consider the recent Court of Appeal judgment Kestrel Hydro v Secretary of State for Communities and Local Government, Spelthorne Borough Council [2016] EWCA Civ 784.

The key issue considered in this case was the circumstances in which a local authority may issue a planning enforcement notice in respect of an unlawful change of use requiring the removal of buildings. As operational development, were such works immune from enforcement after four years?

The Legal Background

Section 57(1) of the Town and Country Planning Act 1990 ("TCPA 1990") requires planning permission to be granted for the "carrying out of any development on land." Section 55(1) of the TCPA 1990 defines the two different acts of "development" as either the:

  • Carrying out of building, engineering, mining or other operations in, on, over or under the land (known as operational development); or
  • The making of any material change in the use of any buildings or other land.

Another part of the TCPA 1990, Section 171B, specifies the time limits for enforcement action by local authorities for unauthorised development; in other words, development carried out without planning permission.

  • In respect of unauthorised operational development, Section 171B(1) provides that no enforcement action may be taken after the end of four years from the date on which the operations were substantially completed.
  • In respect of an unauthorised change of use (other than change of use to any building to use as a single dwellinghouse) Section 171B(3) provides a time limit for enforcement of ten years from the date the unauthorised use began.

The High Court case of Murfitt v Secretary of State for the Environment and East Cambridgeshire DC (1980) established the principle that where operational development is "part and parcel" of the material change of use "or integral to it," then the four year bar will not necessarily apply (and the works would be subject to the ten year enforcement time limit). The "part and parcel" test down set out in Murfitt was also applied in the 1987 case Somak Travel Ltd v Secretary of State for the Environment (1987).

The Issues

On 28 August 2013, the local planning authority, Spelthorne Borough Council, issued an enforcement notice. The notice described the alleged breach of planning control by the Appellant, Kestrel Hydro, as the making of an unauthorised change of use of the land from residential to a mixed use of residential and an Adults Private Members' Club as well as the installation of various structures and the laying of hardstanding to create a car park.

The enforcement notice required that the use cease and the various structures be removed within six months of the notice coming into effect.

Before the Court of Appeal, the Claimant contended that the Council had no power to enforce against the operational development as the structures had been in place for more than four years (but less than ten years) when the enforcement notice was issued. Therefore the enforcement notice could not require the removal of these structures as they were immune from enforcement under Section 171B(1) (being four years), not a material change of use under Section 171B(3) (being ten years).

The Claimant argued that the principle laid down in Murfitt and Somak Travel was "alien to the statutory scheme" a scheme in which, in the context of enforcement, the basic distinction between operational development and material change of use is emphasised.

The Decision

Lindblom LJ rejected the Appellant's submissions holding that an enforcement notice directed at the making of an unauthorised material change of use may lawfully require the land or building to be restored to its condition before that change of use took place, by the removal of the 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."

The Court of Appeal held that the Council had been entitled to regard the breach of planning control as subject to the ten year time limit as the structures were integral to the unauthorised use and ancillary to it. The works were the physical manifestation of the unauthorised change of use.

The Court of Appeal confirmed that Murfitt and Somak Travel are still good law and did not, as the Claimant had argued, modify the statutory scheme.


This decision will likely be well-received by many local authorities as it reaffirms the principle laid down in Murfitt, namely that the where the operational works are part and parcel to the change of use, local authorities are able to regard the breach of planning control as subject to the longer ten year enforcement period.

Reports suggest that the Claimant is seeking permission for the case to be heard by the Supreme Court, so this may not be the last word on this matter.

Click here to read the full judgment.

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