The Murfitt Principle after Kestrel Hydro and Caldwell: Continuing Challenges for Local Planning Authorities

The Murfitt Principle has long played an important role in planning enforcement, particularly where operational development and material change of use become intertwined. For local planning authorities (LPAs), it has historically provided a mechanism for enforcing against developments where differing statutory immunity periods might otherwise prevent enforcement action.

More recent case law, however, has clarified the scope and limits of the Murfitt Principle. For LPAs, the practical significance of those decisions lies in the operational difficulties associated with applying it lawfully and effectively.

Statutory Background

Under the Town and Country Planning Act 1990, LPA’s have the power to take enforcement action where there has been a breach of planning control, and it is expedient for them to do so. However, the legislation sets strict time limits within which to take enforcement action before the breach obtains immunity.

For a detailed consideration of planning enforcement time limits, see our recent article - Planning Enforcement Time Limits – What Are They?

For the purposes of this article, the key point to note is that for breaches occurring prior to 25 April 2024, the time periods are as follows:

1. In the case of operational development, four years from the date on which the operations were substantially completed;
2. In the case of a change of use of any building to a single dwellinghouse, four years from the date on which the breach occurred; and
3. In the case of any other breach of planning control (any other change of use, breach of planning condition etc.), ten years from the date on which the breach occurred.

The effect of this is that operational development, which is a breach of planning control, would become immune before a change of use of land (which occurred at the same time).

Please note our comments below regarding LURA and Wales.

The Murfitt Principle (1980)

In essence, the case of Murfitt established that enforcement notices addressing unauthorised material changes of use (subject to the 10-year rule) may require the removal of operational development, for which the shorter, 4-year enforcement period has passed, provided that such operational development is integral to or part and parcel of the material change of use.

The court emphasised that it was a statutory requirement (under section 173(3) Town and Country Planning Act 1990) for an enforcement notice to state the steps required to remedy the breach. This includes, under section 173(4)(a), restoring the land to its condition prior to the breach occurring. It was held that it would “make a nonsense of planning control” if an enforcement notice requiring discontinuance of a use could not also require physical restoration of the land, including removal of operational development.

In this particular case, it was found that an enforcement notice, served after the 4-year period but prior to the 10-year period ending, which identified the breach of planning control as the unauthorised use of land for parking of vehicles in relation the haulage business could require the removal of the hardstanding (which was operational development, and therefore subject to the 4-year rule rather than the 10-year rule for the change of use).

Clarification: Kestrel Hydro and Caldwell

Courts have considered the Murfitt principle on various occasions, but two key cases have clarified the true effect and use of the Murfitt principle.

1. Kestrel Hydro (2016)

In this case, the Court of Appeal considered various cases that had been heard since Murfitt but held that the principle was good law.

The court clarified that:

• The principle does not apply to works previously undertaken for some other lawful use once the unlawful use has ceased;
• The principle will always generate questions of fact and degree for the decision maker, and whether it applies will depend on the particular circumstances; and
• The principle doesn’t embrace operational development of a nature and scale exceeding that which is truly integral to a material change of use.

2. Caldwell (2024)

In this case, the Court of Appeal highlighted the “narrowness” of the Murfitt principle and supported the reasoning of the High Court in this case.

It clarified several key points:

• The legislation and relevant authorities indicate a “limitation on the power described in Murfitt where the operational development is itself the source of or fundamental to the change of use”;
• The Murfitt principle should not be over-stated and operates within the bounds of statute;
• The principle does not extend to works that are more than merely ancillary or secondary and instead are fundamental to or causative of the change of use itself;
• The language used is significant to understanding the principle and expresses the idea of the operational development serving or being subordinate to the change of use – e.g. “ancillary”, “integral”, “part and parcel”.
• The principle does not support removal of a building or other operational development that is “a separate development in its own right” or which is “fundamental to or causative of the change of use”.
• This understanding of the principle cannot be displaced by the argument that it would cause “useless” buildings. This is inevitable under the statutory time limits.

Effect of LURA

The extension of enforcement time limits in England to ten years for all breaches occurring on or after 25 April 2024 will, in practice, reduce the significance of the Murfitt principle. With

alignment between time limits for operational development and material changes of use, the types of scenarios considered in Murfitt and subsequent case law are less likely to arise.

Despite the changes, however, Murfitt remains relevant for any breaches which occurred in England prior to 25 April 2024.

Enforcement Time Periods Wales

In Wales, the planning enforcement time limits are the same as those which apply in England pre-25 April 2024. Therefore, the relevance of Murfitt will continue for breaches of planning control occurring in Wales.

Practical Challenges for LPAs

Whilst the case law surrounding the Murfitt principle does provide useful clarification, it also presents significant challenges for LPAs.

1. Fact Sensitive Judgements

The fundamental difficulty is distinguishing between operational development that is ancillary to a material change of use and development that is fundamental to or causative of the change.

The distinction can be difficult to apply in practice, especially when the operational development and the change of use are closely intertwined. The courts have avoided establishing a strict test and confirmed that the issue remains one of fact and degree, creating inevitable uncertainty for enforcement officers.

2. Drafting Difficulties

Additional challenges will arise for LPAs in England following the changes in LURA. When drafting enforcement notices addressing both operational development and material changes of use, LPAs must carefully consider how to phrase the notice to ensure compliance with the statutory framework.

LPAs cannot safely assume that all operational development associated with an unauthorised material change of use may be addressed through a single use-based enforcement notice. LPAs must think carefully about:

• how breaches are described;
• whether separate allegations are required;
• whether operational development remains directly enforceable; and
• whether the remedial steps properly correspond to the alleged breach.

How Tozers can help

If you need advice on whether the Murfitt principle is applicable or in relation to drafting enforcement notices, contact our Planning Team for further advice.

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