Hydro v Secretary of State for Communities and Local Government & Anor [2016] EWCA Civ 784 (22 July 2016)

Hydro v Secretary of State for Communities and Local Government & Anor [2016] EWCA Civ 784 (22 July 2016)

The council's enforcement notice was not ultra vires; the removal of structures integral to the unauthorized mixed use was lawfully required under s.173(4)(a) and the Murfitt principle, even if those structures would otherwise be immune from enforcement. The inspector correctly applied the necessity test under ground (f) and was entitled to require removal to remedy the breach.

Citation
[2016] EWCA Civ 784
Parties
Appellant: Kestrel Hydro; First Respondent: Secretary of State for Communities and Local Government; Second Respondent: Spelthorne Borough Council
Jurisdiction
England and Wales
Judgment Date
22 July 2016
Procedural Posture
Planning Enforcement Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Enforcement Notice, Material Change of Use, Operational Development, Green Belt Policy, Time Limits for Enforcement, Remedial Powers, Necessity and Proportionality, Ultra Vires
Planning Law Administrative Law Enforcement Notice Material Change of Use Operational Development Green Belt Policy Time Limits for Enforcement Remedial Powers +2 more

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Parties

Kestrel Hydro

Appellant

Secretary of State for Communities and Local Government

First Respondent

Spelthorne Borough Council

Second Respondent

Procedural Posture

Planning Enforcement Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether enforcement notice can require removal of structures associated with unlawful use after four-year immunity for operational development
  2. 2 Whether enforcement action was ultra vires
  3. 3 Whether inspector erred in considering necessity under ground (f) appeal

Ratio Decidendi

The council's enforcement notice was not ultra vires; the removal of structures integral to the unauthorized mixed use was lawfully required under s.173(4)(a) and the Murfitt principle, even if those structures would otherwise be immune from enforcement. The inspector correctly applied the necessity test under ground (f) and was entitled to require removal to remedy the breach.

Court Disposition

Appeal dismissed

Orders

  • No variation to enforcement notice requirements except as previously allowed by inspector
  • Removal of structures and hardstanding integral to unauthorized use required