Out on a limb

An enforcement notice issued by a council in south Yorkshire has been quashed, an inspector finding that the breach alleged in the notice was set out incorrectly (DCS Number 400-031-367).

The appeal site was a small part of a large field to the rear of the appellant’s dwelling. The inspector recorded that in June 2015 the appellant had applied retrospectively for planning permission for ’retention of temporary large shed and decking’. This application was refused by the council in April 2020. (Blog note: Yep, nearly five years later). A subsequent appeal was dismissed in January 2021 and the enforcement notice was then issued in February 2021. 

The breach of planning control alleged in the notice was “….without planning permission, the unauthorised change of use of the Land to its use for purposes incidental to the adjacent residential property …. and the erection of a timber building that facilitates and is integral to that use of the Land.”

The inspector explained that there are two limbs to ‘development’: the carrying out of building, engineering, mining or other operations in, on, over or under land; and the making of any material change in the use of any buildings or other land. He noted that in S.336(1) of the Act “use”, in relation to land, does not include the use of land for the carrying out of any building or other operations on it.

The council relied on a number of court cases for its approach requiring the removal of operational development which had been in place for more than four years prior to the issue of the notice. The inspector acknowledged that in those cases (Murfitt v SSE and E.Cambridgeshire DC [1980]; Somak Travel v SSE & Brent LBC [1987]; Perkins v SSE & Rother Valley DC [1981]; and Kestrel Hydro v SSCLG [2016]) it was held that an enforcement notice may require that works carried out to facilitate a material change of use are removed. He pointed out, however, that in Kestrel Hydro it was made clear that the ‘Murfitt principle’ does not embrace operational development of a nature and scale exceeding that which is truly integral to a material change of use, and should not be used to override the regime of different time limits for different development in section 171B(1), (2) and (3) of the Act.

The inspector found that in the case before him the development comprised building operations which had resulted in a very noticeable and permanent physical alteration to the land. He judged that the development was not incidental to a material change of use. Rather, it was a large and prominent development in its own right, designed for domestic use. He corrected the allegation in the notice to reflect its status as operational development. As the development had been substantially complete for more than four years prior to the issue of the enforcement notice no enforcement action could be taken against it and he therefore quashed the notice.

The importance of the framing of the correct allegation in an enforcement notice is set out at section 4.533 of DCP Online.