The court in Bowring v Secretary of State for Communities and Local Government [2013] EWHC 1115 (Admin) enunciated the following principles: (1) An enforcement notice can properly require the undoing or removal of any incidental operational development where it forms an integral part of the development enforced against. (2) This is so even where that operational development might not have constituted a breach of planning control, had it been carried out independently. (3) Furthermore, even where the operational development itself would have constituted a breach of planning control, but had become immune from enforcement action, it may still – as operational development incidental to unauthorised development that was not so immune – be enforced against. (4) However, the operational development in question will not form an integral part of the development enforced against where it is shown that such operational development had been undertaken for a different and lawful use and could be used for that other lawful use, even if the unauthorised development was enforced against.
In Kestrel Hydro v Secretary of State for Communities and Local Government [2015] EWHC 1654 (Admin), the appellant appealed under section 289 of the Town and Country Planning Act 1990 (“the Act”) against a decision by an inspector to uphold an enforcement notice issued on 28 August 2013. In that notice, the local planning authority required the appellant to cease the use of premises as a mixed (or composite) use as residential and an adults private members’club and revert it back to use of the premises as a single family dwellinghouse. It also required the removal of 10 separate structures at the premises.
No issue of immunity from enforcement action arose in connection with the change of use (that had begun only in 2005). However, eight of the 10 structures had been substantially completed more than four years prior to the issue of the notice. The inspector refused to remove the eight structures from the ambit of the notice.
