South Darenth Farms and Cold Store Company Limited v The Secretary of State for Housing, Communities and Local Government & Ors

HHJ KAREN WALDEN-SMITH sitting as a Judge of the High Court: Introduction

1. By this application, the Applicant – South Darenth Farms and Cold Store Company Limited (“South Darenth”) - seeks permission to bring a statutory appeal pursuant to the provisions of section 289 of the Town and Country Planning Act 1990 ( TCPA 1990 ).

2. South Darenth seeks permission to appeal the decision of the Inspector appointed by the First Respondent, the Secretary of State for Housing, Communities and Local Government (“the Secretary of State”) made on 6 May 2025 (“the Inspector’s Decision”). The Inspector’s Decision was to dismiss the appeal of South Darenth against an enforcement notice issued by Dartford Borough Council, the Second Respondent (“Dartford Council”), as the local planning authority.

3. If South Darenth succeeds in this application then the appeal will require listing for a substantive hearing. I am grateful to both Counsel for the Applicant, Mr Robin Green and Counsel for the Respondent, Ms Heather Sargent, for their helpful and focussed written and oral submissions. Legislative Background

4. Section 57(1) of the TCPA 1990 provides that planning permission is required for the carrying out of any development of land. Section 55(1) of the TCPA 1990 defines two distinct types of “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.”

5. Part VII of the TCPA 1990 contains the provisions for enforcement. Section 171(1)(a) provides that “carrying out development without the required planning permission” constitutes a breach of planning control. Section 172(1) provides that a local planning authority may issue an enforcement notice where it appears “(a) that there has been a breach of planning control”; and “(b) that it is expedient to issue the notice, having regard to the provisions of the development plan and to any other material considerations”.

6. Section 173(1) of the TCPA 1990 provides that an enforcement notice is to state “(a) the matters which appear to the local planning authority to constitute the breach of planning control” and “(b) the paragraph of section 171(A)(1) within which the breach falls”. Section 173(3) provides that “An enforcement notice shall specify the steps which the authority require to be taken, or the activities which the authority require to cease, in order to achieve, wholly or partly, any of the following purposes”; and section 173(4) provides that “Those purposes are – (a) remedying the breach by making any development comply with the terms (including conditions and limitations) of any planning permission which has been granted in respect of the land, by discontinuing any use of the land or by restoring the land to its condition before the breach took place; or (b) remedying any injury to amenity which has been caused by the breach.” Section 173(5) states that an enforcement notice “may, for example, require – (a) the alteration or removal of any buildings or works” The Enforcement Notice

7. The enforcement notice was issued by Dartford Council on 9 August 2024. It relates to land at Hawkspare, Green Street Green Road, Dartford DA2 8DP (the “Hawkspare Site”). South Darenth is the lessee of the eastern portion of the Hawkspare Site which is known as Fairfield. Hawkspare Limited (“Hawkspare”), the Second Respondent, is the owner of the western portion of the Site. The eastern and western parts of the Hawkspare Site were in common ownership until 1998, when ownership was divided. Both South Darenth and Hawkspare had separately appealed the Enforcement Notice, those appeals being heard together by the Inspector. This application for permission to bring a statutory appeal against the Inspector’s Decision is only being brought by South Darenth.

8. The Enforcement Notice alleged the following breach of planning control : “ Without planning permission, the material change of use of the Land to a mixed use involving: i. plant hire depot for purposes of crane hire, sales, maintenance and storage; ii. various storage compounds; iii. a printing business; iv. general haulage businesses; v. a scaffolding yard; vi. scaffolding sales; and vii. a construction engineering yard together with associated development that facilitates the material change of use, including the levelling of land, laying of concrete slabs and hardcore, the erection of multiple scaffolding structures, siting of multiple site offices, buildings, containers, tanks and toilets, erection of retaining wall, fences and entrance gate and the siting of containers and concrete blocks; (my emphasis) and Without planning permission, the rebuilding of a barn associated with a haulage business and the erection of a metal structure associated with the printing business.”

9. The Enforcement Notice required South Darenth to cease all elements of the mixed use of the land and to remove, amongst other things, “the retaining wall (concrete in gabion cages) that facilitates the material change of use” and “all internal dividing fences, palisade perimeter fences and gate at the main entrance that facilitate the material change of use” (again, my emphasis ). The Challenge to the Enforcement Notice

10. The appeal of South Darenth against the Enforcement Notice was on the grounds set out in s. 174(2) (a), (b), (c), (d), (f) and (g) of the TCPA 1990 . Section 174(1) provides that a person having an interest in the land to which an enforcement notice relates or a relevant occupier may appeal to the Secretary of State against the notice, whether or not a copy of it has been served on him and section 174(2) (c) provides that an appeal may be brought on the basis that “ those matters [stated in an enforcement action] (if they occurred) do not constitute a breach of planning”. South Darenth alleged, pursuant to ground (c), that the erection of retaining walls and fencing of up to 2m in height in Fairfield constituted permitted development under Class A of Part 2 of Sch. 2 to the Town and Country Planning (General Permitted Development) (England) Order 2015 (“the GPDO”) and therefore did not constitute a breach of planning control and was lawful.

11. This particular issue was dealt with by the Secretary of State’s Inspector in paragraphs 41 to 43 of the Decision and at paragraph 42 of the Decision, he stated: “Article 3(5) of the GPDO states that deemed permission granted by Schedule 2 does not apply if, in the case of permission granted in connection with an existing use, that use is unlawful. On that basis and as I have concluded the use is unlawful, the walls and fences cannot benefit from the permitted development rights conferred by the GPDO.” In paragraph 46 the Inspector said as follows: “To the extent that the works to the building may have been permitted development I note the effect of Article 3(5) of the GPDO as set out above in relation to the walls and fences. As a result, the works cannot benefit from the permitted development rights conferred by the GPDO”. The Enforcement Notice was upheld by the Inspector, subject to modification. The Application for Permission

12. The basis of South Darenth’s application for permission is that the fencing and gates with Fairfield were within Class A, Part 2, Schedule 2 to the GPDO and that this Class is not related to either a building or use and so article 3(5) of the GPDO can have no application. Article 3(5) of the GPDO did not, and could not, apply as the lawfulness or otherwise of any existing use of the Land was irrelevant to the operation of Class A. Consequently, the Inspector’s finding that the existing use of the Land was unlawful did not prevent South Darenth from relying on Class A. South Darenth therefore contends that the Inspector erred in law.

13. The Secretary of State accepts, through Counsel’s skeleton argument, that the permission granted by Class A is not a permission “granted in connection with an existing use” and that the Inspector did therefore err in applying Art. 3(5)(b) to the walls and fences. However, the Secretary of State resists the grant of permission to bring the statutory appeal on the basis that the Decision of the Inspector would necessarily have been the same had the Inspector not so erred, and permission should therefore be refused. The Secretary of State relies upon the reasoning in Simplex GE (Holdings) Ltd v Secretary of State for the Environment [2017] PTSR 1041 (CA), and contends that the Inspector would necessarily have come to the same conclusion even though a reason for giving the decision was incorrect.

14. South Darenth has said that it is not possible to say what conclusions the Inspector might have reached had he not incorrectly applied Art. 3(5)(b) of the GPDO to the walls and fences; and that if the Inspector had found that the walls and fences “should not be enforced against” , their assessment of the visual impact of the unlawful use of the Site might have been different. The contrary argument by the Secretary of State is that the walls and fences were to be enforced against because they were integral to or part and parcel of the unlawful use. The Secretary of State relies upon the repeated references in the Enforcement Notice to the walls and fences “facilitating” the material change of use that had taken place without planning permission and contends that the ground (c) appeal could not have succeeded before the Inspector even had he not made a bad point with respect to Article 3(5) of the GPDO.

15. The Secretary of State relies upon the Murfitt principle ( Murfitt v Secretary of State for the Environment ( 1980) 40 P & CR 254) where consideration was given to an enforcement notice in which the local planning authority had alleged a material change of use of a farmyard to use for a plant hire and haulage business. The notice included the removal of hardcore placed on the land in association with the enforced against use. The appellant contended that the enforcement notice had not been directed to the carrying out of operational development and that if such a breach of planning control had been alleged enforcement could only have been taken against development carried out within a period of four years preceding the service of the notice. Thus the hardcore laid on the site more than four years before the service of the enforcement notice would be exempt from any requirement for its removal. The Secretary of State contended that the hardcore was “so much an integral part of the use of the site” that it could not be considered separately. Stephen Brown J said this: “… an enforcement notice shall specify, first, the matters alleged to constitute a breach of planning control, and, secondly, the steps required by the authority to be taken in order to remedy the breach – that is to say, steps for restoring the land to its condition before the development took place… I do not accept the criticism made by the appellant that the requirement to restore the land to its condition before the development took place by the removal of the hardcore is one that is ultra vires ” Waller LJ said: “… where it is [a question of] an ancillary purpose, the planning matter might leave land, as in this case, in a useless condition for any purpose, and, therefore, it is logical that, when the use that has no planning permission is enforced against, the land should be restored to the condition in which it was before that use started.”

16. In Somak Travel Ltd v Secretary of State for the Environment (1987) 55 P & CR 250, the enforcement notice required the cessation of office use in a maisonette above a ground-floor shop and the removal of a spiral staircase between the ground floor and the first. The physical works, namely the removal of an internal staircase, were “outside the scope of planning control” because they did not constitute “development” at all (and therefore did not require planning permission). The inspector had decided that the removal of the staircase was necessary to restore the maisonette to residential use. Stuart-Smith J (as he then was) applied the Murfitt principle and held that the enforcement notice had been entitled to require the removal of the internal staircase. He reasoned as follows : “The test laid down in that case by Stephen Brown J, that the operational activity should be part and parcel of the material change of use or integral to it, is one which seems to me to be satisfied in this case. It must, of course, be a question of fact in each case, but there seems to me to be plainly material upon which the inspector could come to the conclusion, as he clearly did that [the staircase] was integral to [the change of use ]… It seems to me that if one adopts the test, whether or not it was integral to or part and parcel of the change of use from residential to office accommodation, the test is satisfied .” In Murfitt the original operational development of placing the hardcore on the land was unlawful but it became immune from action because of the four year limitation period. Stuart-Smith J held that the two things come to the same result: “that is a distinction without a difference .”

17. Lindblom LJ, as he then was, set out the principle in Kestrel Hydro v SSCLG [2023] PTSR 2090 in this way: “What, then, is the principle? It is that an enforcement notice directed at a breach of planning control by the making of an unauthorised material change of use may lawfully require the land or building in question to be restored to its condition before that change of use took place, by the removal of associated works as well as the cessation of the use itself—provided that the works concerned are integral to or part and parcel of the unauthorised use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased. But it can extend to unauthorised changes of use where the associated works, if viewed on their own, would have become immune from enforcement under the four-year rule in section 171B(1) (as in Murfitt ) or would be outside the scope of planning control (as in Somak Travel Ltd 55 P & CR 250). In every case in which it may potentially apply, therefore, it will generate questions of fact and degree for the decision-maker. Whether it does apply in a particular case will depend on the particular circumstances of that case”. He further stated that: “… the proposition that when a local planning authority is properly enforcing against a material change of use of premises where that change of use has entailed subsequent physical works to facilitate and support it, and those works are thus integral to the unauthorised use, the statutory scheme allows the enforcement notice to require the removal of such works as well as the cessation of the use itself ”.

18. Lindblom LJ also cited Clive Lewis QC (as he then was) sitting as a Deputy High Court Judge in Bowring [2013] JPL 1417, where he relied upon Somak to say that “where an enforcement notice is served alleging the making of a material change of use of land, and the notice requires that certain works be removed, those works must have been integral to or part and parcel of the making of the material change of use.” However, he also said “it will not be sufficient if the works are integral to or part and parcel of the present unauthorised use of land if the works had been undertaken for a different, and lawful, use and could be used for that other, lawful use even if the unauthorised use ceased.” Lindblom SPT referred to the Murfitt principle in Caldwell v SSLUHC [2024] PTSR 1761 . At paragraphs 39 to 43 Lindblom SPT identified five points in relation to the principle, which included the following: “(1) The Murfitt principle is judge-made and “embodies the remedial power in [ s. 173(4) (a) of the 1990 Act ] to require the restoration of the land to its condition before the breach of planning control took place. It reflects the substance of that remedial, or restorative, provision. It represents a practical means of remediating the unauthorised change of use”, but (2) The principle does not extend to works that are more than merely ancillary or secondary and are instead fundamental to or causative of the change of use itself. ”

19. In Cash v SSCLG [2012] EWHC 2908 where the applicant had argued on appeal before an inspector that a 1.8m fence that he had erected around the compound within which the development was located was permitted development under Class A (and not part and parcel of the development that required planning permission), such that the local planning authority had been wrong to serve an enforcement notice requiring the removal of the fence. The Inspector’s decision to reject that argument was upheld on a challenge to the High Court, Miss Belinda Bucknall, the Deputy High Court Judge recording the Inspector’s finding that: “There seems little doubt that the fence was erected as part of the development as a whole, and not as a separate operation benefitting from permitted development rights. There was no alternative reason given for its presence on the site … it appears to be an integral part of the development and it is a very noticeable feature of the development as a whole.” The applicant contends that the decision in Cash should be treated as being per incuriam as it failed to consider the implications of Staffordshire CC v Challinor [2008] 1 P & CR 10 or Duguid v Secretary of State for the Environment, Transport and the Regions (2001) 82 P & CR 6.

20. The Secretary of State contends in this case that whether or not the walls and fences benefitted from permitted development rights, there was a breach of planning control because the walls and fences were integral to the unlawful use and that there was nothing in the evidence before the Inspector that suggested that the walls and fences were fundamental or causative of the unlawful change of use so as to take it outside the Murfitt principle (see Lindblom SPT in Caldwell ) rather than being merely ancillary or secondary to the unlawful use . Does the Murfitt Principle Apply

21. In order for the Murfitt principle to apply, “ the works concerned [need to be] are integral to or part and parcel of the unauthorised use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased In order for the Murfitt principle to apply, “the works concerned [need to be] integral to or part and parcel of the unauthorised use. It does not apply to works previously undertaken for some other, lawful use of the land in question, and capable of being employed for that or some other lawful use once the unlawful use has ceased” .

22. The Applicant relies upon the Inspector not having expressed a positive finding in the Decision Letter that the walls and fences are integral or “part and parcel” of the unauthorised use. It is said on behalf of the Applicant that he simply did not grapple with the issue at all. However, an Inspector is not obliged to record every point of contention and, having come to the erroneous conclusion he did with respect to Article 3(5) of the GPDO, it is of no surprise that he did not expressly deal with this point in the Decision Letter in the five paragraphs where walls and fences are mentioned (paragraphs 41, 43, 46, 49 and 51).

23. The wording in the Enforcement Notice was that the “retaining wall, fences and entrance gate” were part of the associated development and in the direction of what was required to be done, the retaining wall and the fences were all described as items that facilitated the unlawful use. The Enforcement Notice was therefore clear that the fences and retaining wall were associated development facilitating the change of use and there was no evidence put before the Inspector by the Applicant that the fences and wall were anything other than facilitative. In my judgment, it is inevitable that had it been expressed, the Inspector would have found that the fences and wall were “part and parcel” of the unauthorised use.

24. The Applicant further contends that, by reason of the determination in Staffordshire CC v Challinor [2008] 1 P & CR 10, and the earlier decision of Duguid v Secretary of State for the Environment, Transport and the Regions (2001) 82 P & CR 8, an Enforcement Notice cannot remove permitted development. In Duguid , it was held by Ward LJ that “ no enforcement notice can take away legally permitted rights” and that all else flowed from that central proposition. He further stated “There is … absolutely no need at all to refer to the GPDO because it operates as a matter of law within parameters that are certain, being those defined by the order itself.” The Applicant submits that as a consequence, GPDO rights are retained. In Challinor Keene LJ referred back to Duguid and set out that: “… it was unnecessary to amend an enforcement notice so as to safeguard those use rights which arose as a result of the permission granted generally by the General Permitted Development Order 1995… for a temporary use of land for not more than a certain number of days in the year. It was in that context, and indeed in the course of a statutory challenge under s. 289 to an inspector’s decision on an appeal against an enforcement notice, that Ward LJ said that such a notice could not take away legally permitted rights… “ … an enforcement notice will be interpreted so as not to interfere with permitted development rights under the General Development Permitted Order or with rights to use land for a purpose ancillary to a principal use which is itself not being enforced against… the authorities go no further than that and certainly do not establish any general right to assert existing use rights at a time when the enforcement notice has come into effect after an unsuccessful appeal or in the absence of an appeal .” It is the Applicant’s case that it is clearly arguable that the Class A development was permitted by the GPDO and that the Enforcement Notice cannot interfere with those rights .

25. While neither Challinor nor Duguid were referred to in Kestrel Hydro or the later case of Caldwell, it is inconceivable that Lindblom SPT would not have Challinor in mind. As he set out, the point that was at the heart of the Kestrel Hydro appeal was the circumstances in which “an enforcement notice issued by a local planning authority against an unlawful change of use require the removal of structures connected with that unlawful use?” . In Caldwell , upholding the decision of Holgate J (as he then was) allowing the appeal against the determination of the Inspector, it was held that while the Murfitt principle was not to be overstated as it operated within, and did not override, the statutory scheme for enforcement, it embodied the substance of the remedial power in section 173(4) (a) of the TCPA 1990 to require restoration of the land to its condition before the breach of planning control took place. While it did not extend to works that were more than ancillary (for example a development in its own right or works that were fundamental to or causative of the change of use), it could include the removal of operational development which could not be enforced against on its own – in the case of Caldwell the example was given of the four-year time limit in section 171B.

26. In my judgment, the Murfitt principle applies equally where the works concerned, in this case walls and fences, benefit from Permitted Development rights. For the Murfitt principle to apply, the works need to be integral to, or part and parcel of the unauthorised use, and must not be more than ancillary. The existence of GPDO rights does not create an exceptional class, and such a finding would, in my judgment, be contrary to the principles set out by Stuart-Smith J in Somak referred to as “good law” by Lindblom LJ in Kestrel Hydro . Simplex

27. Further, if I were wrong about the applicability of the Murfitt principle to the fence and walls, the Inspectors clear findings about the development being “inappropriate” (paragraphs 140, 141 of the Decision Letter), the “harm to the intrinsic character and beauty of the landscape and the living conditions of the neighbouring occupiers (paragraph 142 of the Decision Letter), and the “substantial weight to be given to the Green Belt harm…” (paragraph 144 of the Decision Letter) then the Inspector would necessarily have come to the same conclusion. Conclusion

28. For the reasons set out above, while it is accepted by the Secretary of State that the Inspector erred in applying Article 3(5), the application for permission to bring this section 289 appeal does not succeed.