In the last few weeks, we have seen two very significant developments in the law on immunity from enforcement.
First, last week, the Court of Appeal handed down an important judgment providing extremely welcome clarity as to the scope and operation of the so-called Murfitt principle (SSLUHC v Caldwell [2024] EWCA Civ 467).
Second, providing a slight limitation on the significance of that judgment, section 115 of the Levelling-up and Regeneration Act 2023 (“LURA”) came into force, altering significantly the time limits for immunity from enforcement in England.
This post seeks to describe and explain those two developments in more detail, and to explain precisely what their effect may be in practice.
Caldwell in the Court of Appeal
What is the Murfitt principle?
The Murfitt principle is relatively straightforward to state, but can be tricky to apply in practice.
In short, the principle is as follows – where operational development which would otherwise be immune from enforcement by reason of the statutory time limit is “ancillary” to an unauthorised change of use which is not immune, LPAs are entitled to stipulate in an enforcement notice that the relevant land be restored to the condition it was in prior to the change of use, and to include within that the removal or demolition of the operational development.
Facts of Caldwell
The Appellant owned a small agricultural site, adjacent to a timberyard which he operated. On a number of occasions, he had unsuccessfully applied for planning permission to build various structures on the site, including a dwelling for a staff member. Subsequently, between mid-2013 and mid-2014, he covertly constructed a dwelling known as ‘The Goose House’ on site.
Some considerable time thereafter, in February 2021, the LPA issued an enforcement notice, identifying an unauthorised change of use from agricultural to residential. However, relying on the Murfitt principle, the Notice required both the cessation of that use, and the demolition of The Goose House.
The Appellant appealed on the basis that The Goose House was immune from enforcement, but the Inspector rejected that argument. He concluded (relying heavily on the Court of Appeal’s judgment in Kestrel Hydro v SSCLG [2016] EWCA Civ 784) that the development was “part and parcel of, and integral to, the change of use”, and therefore covered by the Murfitt principle.
On statutory review before the High Court1, however, that determination was quashed. Lieven J identified a distinction in the Murfitt caselaw between development which is “secondary to, or associated with” the change of use, and development which is “fundamental to, or causative of” that change of use. Lieven J concluded that, properly understood, Murfitt only covered the former category, and that the Inspector had failed to appreciate that fact, and also failed to appreciate that The Goose House plainly fell into the latter category, as in reality the construction of the dwelling was entirely causative of the change of use to residential, rather than simply being an ancillary element of it.
The Appellant then appealed to the Court of Appeal, who last week handed down a concise and clear judgment of the Senior President of Tribunals (with whom Andrews and Coulson LJJ agreed) dismissing the appeal.
Judgment of the Court of Appeal
At the outset, the Court issued a careful warning to readers of the judgment which bears repeating – despite being handed down after 25th April 2024, this case was determined on the basis of the old enforcement time limits as a result of transitional provisions within LURA, which are explained further below ([14]).
The Court’s ultimate conclusion was that Lieven J’s reasoning was sound. The Court concluded that Lieven J “captured the essential point” in identifying that the Murfitt principle did not apply to situations “where the operational development is itself the source of or fundamental to the change of use” ([37]). It went on to identify five key principles for those seeking to interpret and applying the Murfitt principle correctly. These make essential reading, and are as follows:
- The Murfitt principle “must not be over-stated” and must operate within the bounds of the statutory scheme and the differing time limits for which it provides ([39]).
- The principle is ultimately grounded in the power in section 173(4)(a) of the TCPA 1990, which allows for LPAs to require the restoration of land against which it is enforcing. It cannot, therefore, extend to circumstances where the development is ultimately causative of the change of use itself ([40]).
- The essential limitation in the caselaw is that the operational development must be “ancillary to” the change of use. There are numerous different examples in the caselaw of synonymous phrases being used (such as “integral”, “associated”, “part and parcel” and “entailed”), but all are ultimately ways of rephrasing that basic limitation ([41]).
- Where the operational development has itself brought about the change of use, the Murfitt principle is not engaged, because the development is not “ancillary” to it. It is this limitation which Lieven J phrased as “fundamental to or causative of the change of use”. Without that limitation, the differing time limits would be compromised ([42]).
- The cogency of that limitation is not displaced by the Appellant’s submission that upholding it would create “useless” buildings. Such situations are inevitable given the different time limits in the legislation, and are something which LPAs will need to factor in when considering whether to take enforcement action out of time ([43]).
Here, the Inspector had failed to understand those principles correctly. The error into which they fell was to fail to recognise the development must be “ancillary” to the change of use for Murfitt to apply, and to proceed on the basis that it was sufficient that the development was “part and parcel of, and integral to the change of use”. Accordingly, the appeal was dismissed.
Practical take-aways
A number of important practical points arise from the judgment.
First, the Court has now outlined two key ‘tests’ in respect of the Murfitt principle in very clear terms (points 3 and 4 above). The principle bites where the operational development is “ancillary” to the change of use, and ceases to bite at the point at which it is “fundamental to or causative of” that change of use. The real utility here is that the Court has confirmed that the numerous other tests scattered across the caselaw (including most notably in Kestrel Hydro and in Welwyn Hatfield BC v SSCLG [2010] EWCA Civ 26) are, in fact, not to be treated as new tests in themselves. On the contrary, they are simply attempts to rephrase those core principles.
Second, the Court has reinforced that the source of the power, as a matter of law, is in the sections of the TCPA 1990 which permit enforcement notices to require land to be restored to its previous condition. That is particularly useful because it should help LPAs and Inspectors in seeking to apply the Murfitt principle – is the demolition of the development in question something which might properly be considered part of a restoration of land to its previous use, or is it of more significance and importance to the change of use as a whole?
Third, the Court has laid down five clear principles to be applied in Murfitt cases. As they are expressed in such clear terms, it is highly likely that these principles will be recited frequently by Inspectors and the courts when seeking to ascertain the outer boundaries of the principle in any cases to which it will still apply going forward. They should accordingly be the first point of reference for practitioners.
Going forward
Ultimately, as a result of the changes wrought by section 115 of LURA, the relevance of the Murfitt principle is likely to be significantly reduced in the coming months and years. Put shortly, there is likely to be considerably less need for LPAs and/or Inspectors to rely upon Murfitt in order to enforce against long-standing operational development now that the time limits for enforcement are aligned for operational development and changes of use, and are lengthened.
Nonetheless, as explained below, section 115 is attended by some fairly restrictive transitional provisions which are likely to mean that the Murfitt principle remains significant for a good while yet. That being so, Caldwell is must-read.
New Time Limits
On 25th April 2024, section 115 of LURA came into force. That section amends section 171B of the TCPA 1990, and has the simple effect of increasing the time limit for immunity from enforcement for both unauthorised development and changes of use to single dwellings. The time limit is now 10 years in both instances. This brings the time limit into line with the long-standing time limit in respect of other breaches of planning control, which is not affected by LURA.
These changes have been foreshadowed since the inception of LURA. Discussing the question before the Public Bill Committee back in September 2022, Marcus Jones MP (then Housing Minister) described the problem as follows:
“The four-year time limit can cause frustration for communities, whose initial pragmatism may result in unauthorised, harmful development becoming inadvertently immune from enforcement action…[The changes] will provide greater confidence to local planning authorities that they will have the time to take enforcement action, and indicate to the public that planning breaches are taken seriously and should never be viewed as a preferential approach to proper engagement with the planning system.”2
There are, however, two important points to bear in mind about the new provisions when seeking to apply them in practice.
Transitional Provisions
First, as with much of LURA, they are attended by transitional provisions. These are contained in Regulation 5 of the snappily entitled Planning Act 2008 (Commencement No. 8) and Levelling-up and Regeneration Act 2023 (Commencement No. 4 and Transitional Provisions) Regulations 2024. In short, Regulation 5 preserves the old time limits for cases in which the unauthorised development was substantially completed prior to 25th April 2024, or where the change of use to a single dwelling occurred prior to 25th April 2024.
In practice, this is likely to mean that the old time limits remain highly relevant for a good while yet. They mean that the new time limits will only apply to operational development which is, as a matter of fact, substantially completed after 25th April 2024. For all operational development completed prior to that date, the old time-limits will continue to apply, including for the purposes of any appeals or High Court challenges, even if these are launched after 25th April 2024. In essence, therefore, the provisions freeze the position on the ground as at 25th April 2024, rather than freezing the position as a matter of abstract law for the purposes of any challenges.
This is also likely to mean that there is far greater scope for detailed argument about immunity from enforcement in the coming years. In short, much more now rides on the question of when substantial completion occurred. Practitioners are used to having to pay careful attention to the point of substantial completion because it is that fact which starts the clock running on the immunity period. Now, however, attention will also have to be paid to that point because depending on which side of 25th April 2024 it falls, it now also determines for how long that clock runs (i.e. 4 or 10 years).
Territorial Application
Second, and somewhat unhelpfully, these changes apply to England only. In Wales, the position remains as it was pre-LURA. Accordingly, practitioners practising on both sides of the border will need to be very acutely aware of which time limits apply where.
1 [2023] EWHC 2053 (Admin)
2 Hansard, Public Bill Committee, Tuesday 6 September 2022, Column 591
