Kestrel Hydro v SSCLG 2016 EWCA Civ 216

Clarke and Robson-Kanu v Bracknell Forest BC, Planning Inspector  [2017] P.A.D. 46: does the Murfitt principle extend to lawful development certificate applications?

18 However, the judge stated in Waters “in my judgment, in cases comparable to Murfitt and Somak , where it appears to a local planning authority that the operational development for which a certificate of lawfulness is sought may be subject to enforcement proceedings as an integral part of an unauthorised use, then it may properly find that it is not satisfied of the lawfulness of the operational development under section 191(4) . That is a question of judgement for the local planning authority on the facts in any particular case.” The appellants argued this statement was obiter, but whatever its status it seems to me to only be stating the obvious. Operational development cannot be lawful if it is considered to be part and parcel of an unlawful material change of use. The key question for this appeal is whether the fences were erected as part and parcel of the material change of use from amenity to garden land.

20 Setting aside my conclusion on the Ground (c) appeal for the moment, it follows that if the fences were part and parcel of the material change of use then they cannot benefit from permitted development rights granted by Class A of Pt 2 of the GPDO which allows fences etc up to 2m tall to be erected as a means of enclosure subject to various restrictions not relevant here. Permitted development rights do not apply to land where there has been an unlawful material change of use, s.3(5)(b) refers, and there was no separate and lawful enclosure of the amenity land followed by a later absorption into the garden, it appears to have been one act of enclosure and material change of use. Hence in my view the Murfitt principle does apply to these LDC appeals (my emphasis).