Limitations on the Murfitt principle

Limitations on the Murfitt principle

Our recent post on the development of the law around the Murfitt principle discussed the case of Caldwell v Secretary of State for Levelling-up Housing and Communities [2023] EWHC 2053 (Admin) which has now been upheld on appeal to the Court of Appeal. The leading judgment in the Court of Appeal was delivered by Sir Keith Lindblom, the Senior President of Tribunals which was handed down on 2 May 2024.

In a workmanlike judgment (as would be expected from the judge that delivered the leading judgment in the key precedent case of Kestrel Hydro), Sir Keith agreed with what Mrs Justice Lieven said in the High Court about the limitations that attach to the Murfitt principle by application of the statuary code for enforcing breaches of planning control set out in Section 171B of the Town and Country Planning Act 1990.

For those interested, the key passages of his judgment are at paragraph 42 where he concluded that “Where the operational development has itself brought about the change of use, the Murfitt principle is not engaged” and “Bringing within the scope of the Murfitt principle operational development that has itself caused the material change of use would have gone against the statutory scheme, undermining the different time limits in section 171B, and compromising, if not removing altogether, the immunity of operational development from enforcement action after four years (section 171B(1)). What immunity would then remain for a building when a change of use had taken place as a consequence of its construction? It would presumably have remained open to the local planning authority to take enforcement action against such buildings for a period of ten years. This would have negated the effect of section 171B(1).”

In view of the obsolescence of the four-year rule Sir Keith added a postscript to his judgment to say that “This judgment must be read bearing in mind the change to the statutory time limits for enforcement action in section 171B that has now been brought about by section 115 of  the [Levelling up and Regeneration Act] 2023. Although different time limits for enforcement will continue to apply to breaches of planning control that occurred before 25 April 2024, this reform of the statutory scheme will clearly affect future cases where the facts are similar to these (see paragraph 14 above).” 

We have had a number of cases in recent years where Local Planning Authorities (LPAs) have relied on what has now been confirmed as an incorrect understanding the Murfitt principle to resist applications to regularise breaches of planning control involving the construction of buildings and associated operational development, including dwellings, on the grounds that, notwithstanding the four-year rule, they are able to enforce against the change of use and apply the Murfitt principle for a period of 10 years. In cases where it can be demonstrated that it is the operational development that has generated the change of use – and where the operational development was substantially completed prior to 25 April 2024 – LPAs will now have to proceed on the basis that the operational development itself becomes immune from enforcement after 4 years and will need to consider whether, in those circumstances, it is expedient for them to take enforcement action against the change of use.

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