Planning essentials case update: when can an enforcement notice against an unlawful use also require the removal of related structures?

There are currently two different limitation periods for breaches of planning law dependent on the type of breach. The general rule is that where there has been a breach of planning control consisting of building operations without planning permission, no enforcement action can be taken 4 years after the operations were substantially completed. 

Whereas, where there has been an unlawful change of use (other than to a single dwelling house in respect of which the 4-year rule also applies) or other breach of planning control the period is 10 years.

However, what happens when the breach involves both an unlawful use (which has not yet reached the 10-year threshold) together with unlawful building operations (which have passed the 4-year threshold)?

In 1980, the High Court in Murfitt v Secretary of State for the Environment considered the case of a farmyard where there was an unlawful parking use together with unlawful works (including the construction of an office and hard-standing). The local planning authority served an enforcement notice requiring the site to be restored to its former state (i.e., requiring not only that the unlawful use cease but that the related physical structures also be removed). The landowner argued that the structures had been on site for more than four years and thus physical restoration of the site was beyond the powers of the authority. However, the High Court held that the enforcement notice was valid - the structures were secondary to the use and were not saved by the 4-year rule.

In subsequent cases, the Courts have clarified that it is necessary to focus on the true nature of the breach, which then confirms which limitation period is to apply. If the works were undertaken for (and could be used for) another lawful use, then they will fall outside Murfitt.  

The High Court recently considered these principles in the case of Caldwell v Secretary of State for Levelling Up, Housing & Communities which concerned an alleged unlawful change of use from agricultural to residential associated with the construction of a dwelling and incidental structures. The Court confirmed that it would be a step too far to extend Murfitt to allow enforcement against operational development which is itself the source of or fundamental to the change of use.  That would clearly be contrary to the statutory 4-year limitation period. 

The new Levelling Up and Regeneration Act envisages (subject to Regulations being enacted) a single limitation period of 10 years for all breaches of planning control. It remains to be seen whether transitional provisions will apply. In the meantime, Caldwell serves as a useful reminder on the limitations of a local authority’s power to require removal of operational development in conjunction with an unlawful change of use and the need to scrutinise enforcement notices carefully.