Facilitative or fundamental?

Facilitative or fundamental?

One of the joys of what we do is that, every now and then, a case comes along that re-sets what have become the established ground rules. That is what has happened in the case of Caldwell v Secretary of State for Levelling-up Housing and Communities [2023] EWHC 2053 (Admin).

The facts in Caldwell are straightforward and involve the construction of a new dwelling and various ancillary buildings without planning permission on agricultural land. The local planning authority (LPA) (Buckinghamshire Council) served an enforcement notice. At the time the enforcement notice was served, the dwelling and ancillary buildings had been in place for more than four years but for less than ten. The buildings were therefore immune from enforcement under “the four-year rule” under Section 171B (1) of the Town and Country Planning Act 1990 (TCPA) but the change of use of the land was subject to “the ten-year rule” under Section 171B (2) of the TCPA.

The LPA relied on what is known as the “Murfitt principle” which refers to the 1980 case of Murfitt v Secretary of State for the Environment (1980) 40 P. & C. R. 254 and served an enforcement notice requiring Mr Caldwell to cease the residential use of the land and demolish and remove the dwelling and other buildings from the land.

The Murfitt principle is that, where operational development has been carried out to facilitate an unauthorised use an LPA may require the removal of the operational development as part and parcel of the powers that it has under Section 173 of the TCPA to require that land on which breaches of planning control have taken place to be restored to its condition before the breach took place.

The Murfitt principle was considered and approved by the Court of Appeal in the case of Kestrel Hydro v Secretary of State for Communities and Local Government [2016] EWCA Civ 784 and has been widely used by LPAs in circumstances where operational development, including the construction of a dwelling, has become immune from enforcement but a change of use has not.

In Caldwell, Mr Caldwell appealed the enforcement notice on the grounds that the Murfitt principle should not be applied because Section 171B (1) of the TCPA is clear that the relevant time period for operational development (in this case the dwelling) to become immune from enforcement is four years and not ten. The planning inspector refused the appeal and upheld the application by the LPA of the Murfitt principle. Mr Caldwell appealed that decision to the High Court where the case was heard by Mrs Justice Lieven DBE.

In a thorough and carefully worded judgment, Justice Lieven reviewed the case-law, including the Court of Appeal judgment in Kestrel Hydro and came to the view, not that the Murfitt principle did not apply, but that, when applied correctly to the circumstances of the case and in accordance with the legislative provisions of the TCPA, the time period to be applied to the dwelling was four years and not ten. She therefore upheld the appeal and remitted the enforcement case to the Secretary of State for re-determination. For those with an interest in the legal analysis the judgment is well worth the read.

In reaching her decision, Justice Lieven accepted the case that was made on behalf of Mr Caldwell that the correct approach is to distinguish between operational development that is facilitative – i.e. that is ancillary to or that supports the unlawful change of use, and operational development that is fundamental to the change of use itself – i.e. where the change of use could not have taken place but for the operational development. This distinction was described by Mr Caldwell’s barrister as a question of whether the change of use was itself generated by the operational development or was only supported by it. Justice Lieven concluded that, in the circumstances of this case, the construction of the dwelling was fundamental to or causative of the change of use and that, accordingly, the dwelling had the statutory protection of the four year rule.

Although the four year rule now only applies to breaches of planning control in Wales and to breaches of planning control in England that occurred before 25 April 2024, the decision in Caldwell represents a significant development of the law. It is, therefore, not surprising that it is currently the subject of an appeal to the Court of Appeal. The substantive hearing took place on 13 March 2024 and readers with a sufficient interest and the time to do so can view the hearing here.

What is not immediately apparent from the judgment, but is clear from the hearing, is that, if the appeal to the Court of Appeal does not succeed, the building itself will be lawful but the use of it as a dwelling will not. Would that not be just a Pyrrhic victory? Perhaps; but it is possible to see an argument that, faced with the lawfulness of the building, it may well not be expedient for the LPA to seek to prevent it from being used for the purpose for which it was built and designed to function. That, of course, would be a discussion for another day.

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