Kestrel Hydro v Secretary of State for Communities and Local Government & Spelthorne Borough Council [2016] EWCA Civ 784

Kestrel Hydro is a leading Court of Appeal judgment on the remedial scope of an enforcement notice. It confirms the principle first recognised in Murfitt: where an unauthorised change of use has brought with it physical works that are genuinely integral to that use, an enforcement notice can require those works to be removed as part of restoring the land.

Neutral citation

[2016] EWCA Civ 784

Court

Court of Appeal (Civil Division)

Judgment date

22nd July 2016

Judge

Lord Justice McFarlane and Lord Justice Lindblom

Case number

C1/2015/2160

What Kestrel Hydro decided

The property known as Kestrel in Stanwell Moor had a lawful use as a single dwellinghouse. It later changed to a mixed residential use and an adults’ private members’ club without planning permission.

After the unlawful mixed use began, hardstanding was laid for a car park and a number of sheds, walkways and other structures were installed to serve the club. Several of those works had been in place for more than four years by the time Spelthorne Borough Council served its enforcement notice.

The notice required the unlawful use to cease and the associated works to be removed. The Court of Appeal held that the council and Inspector were entitled to take that approach.

The true nature of the breach comes first

Kestrel Hydro emphasises that enforcement starts with the breach actually alleged in the notice. The statutory time limit and the steps that can lawfully be required depend on the true nature of that breach.

Here the principal breach was the unauthorised material change of use. The hardstanding and structures had then been introduced to enable and facilitate that unlawful use.

The mere fact that some of those works were operational development did not automatically mean they had to be treated as separate breaches for enforcement purposes.

The Murfitt principle

The Court of Appeal stated the principle in practical terms. An enforcement notice directed at an unauthorised material change of use may require the land or building to be restored to its condition before that change of use took place. That can include removing associated works as well as stopping the use.

But the works must be genuinely integral to or part and parcel of the unauthorised use. The principle does not apply to works previously undertaken for a separate lawful use and capable of continuing to serve that lawful use.

Whether the necessary relationship exists is a question of fact and degree.

The principle is narrow

Lord Justice Lindblom warned that the breadth of Murfitt must not be overstated. It operates within the statutory enforcement scheme rather than extending it.

Operational development of a nature or scale exceeding what is truly integral to the change of use is not swept into the rule merely because it sits on the same site. That boundary became particularly important in the later Court of Appeal decision in Caldwell.

The works at Kestrel were closely tied to the club use

The Inspector found that the car park, covered walkway, marquee-style structure, sheds and other buildings had been introduced after the unlawful mixed use began and for the purposes of that use.

There was no evidence that they had been installed for the earlier lawful residential use. The Inspector was therefore entitled to treat them as the physical manifestation of the unauthorised change of use and require their removal.

Ground (f) did not save the structures

Kestrel Hydro also argued that requiring the structures to be removed went beyond what was necessary to remedy the breach under enforcement appeal ground (f).

The Court of Appeal rejected that argument. Once the Inspector had lawfully found that the structures were integral to the unlawful use, removing them was capable of being the minimum necessary step to restore the land to its condition before the breach.

A merely hypothetical possibility that some structure might later be useful for a lawful residential use did not require the Inspector to let it remain.

Caldwell later clarified the outer limit

The 2024 Court of Appeal judgment in Secretary of State v Caldwell did not overrule Kestrel Hydro. It clarified the limit of the same principle.

Kestrel involved works introduced to facilitate an already unlawful change of use. Caldwell involved a new dwelling whose construction was itself fundamental to and causative of the residential change of use. The Court of Appeal held that Murfitt could not be stretched that far.

The enforcement time limits have since changed

Kestrel Hydro was decided under the former English enforcement regime, which generally gave operational development a four-year immunity period while most changes of use had ten years.

From 25th April 2024, the ordinary time limit in England is ten years for both operational development and material changes of use, subject to transitional protection for older breaches. That reform reduces the practical significance of some of the historic time-limit arguments, but the Murfitt principle remains relevant to what an enforcement notice can require as a remedy.

Read the full Kestrel Hydro judgment

The approved Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.

Related Planning Geek guidance

See our guide to enforcement appeal grounds, together with enforcement notices and appeals and the current enforcement time limits.

Kestrel Hydro Case Law Page Updated: 9th September 2026