Secretary of State for Levelling Up, Housing and Communities v Ian Nivison Caldwell & Anor
[2024] EWCA Civ 467
Ian Caldwell & Anor v The Secretary of State for Levelling-Up, Housing and Communities & Anor
7 August 2023
[2023] EWHC 2053 (Admin)
High Court
Someone built a house without permission. Years later, the council tried to force them to tear it down. The court said the council couldn't do that because the house itself is what broke the rules, even though the time limit for enforcement had passed on the building itself. The council can only make them stop using it as a home, not tear it down.
Key Facts
- •Two challenges to a Secretary of State's decision concerning an enforcement notice and a certificate of lawful use and development.
- •Appeal under section 289 and application for statutory review under section 288 of the Town and Country Planning Act 1990 (TCPA).
- •Construction of a dwelling house (Goose House) completed in 2014 without planning permission.
- •Enforcement Notice (EN) issued in 2021 requiring demolition of the dwelling and restoration of the land.
- •Goose House's construction was substantially completed more than four years before the EN, benefiting from immunity under section 171B(1) TCPA.
- •The residential use of the land had not been subsisting for 10 years, meaning it didn't benefit from the immunity in 171B(3).
Legal Principles
An enforcement notice directed at a breach of planning control by an unauthorized material change of use may require the land or building to be restored to its condition before the change of use, by removing associated works integral to the unauthorized use.
Kestrel Hydro v SoSCLG [2016] EWCA Civ 784
Enforcement action cannot be taken against operational development after four years from substantial completion (building operation) or ten years from material change of use (other than a change to a single dwelling house).
Town and Country Planning Act 1990 (TCPA)
The power to require restoration under s.173(4)(a) TCPA includes removal of operational development, even if the development itself is immune from enforcement due to time limits, provided it's integral to the unauthorized use.
Murfitt v Secretary of State for the Environment [1980] 40 P&CR 254
Outcomes
The Inspector's decision was quashed.
The Inspector erred in law by not appreciating the limitation on the Murfitt principle; requiring removal of the dwelling house (the principal operational development) exceeded the statutory power.
The matter was remitted to the Secretary of State for re-determination.
The court found the enforcement notice requiring demolition of the dwelling to be unlawful.
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