South Darenth Farms and Cold Store Company Limited v Secretary of State for Housing, Communities and Local Government & Ors [2025] EWHC 2646 (Admin)
South Darenth Murfitt principle is an important Planning Court decision on the relationship between permitted development rights and the remedial requirements of an enforcement notice directed at an unauthorised material change of use.
The court held that walls and fences could still be required to be removed under the Murfitt principle where they were integral to, or part and parcel of, the unlawful use, even if the works themselves benefited from permitted development rights.
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- Neutral citation
- [2025] EWHC 2646 (Admin)
- Court
- High Court, King's Bench Division, Planning Court
- Judgment date
- 16th October 2025
- Judge
- HHJ Karen Walden-Smith, sitting as a Judge of the High Court
- Case number
- AC-2025-LON-001918
What South Darenth decided
The case concerned land at Hawkspare, Green Street Green Road, Dartford. An enforcement notice alleged a material change of use to a mixed commercial use involving plant hire, storage, printing, haulage, scaffolding and construction engineering, together with associated operational development.
The notice required the unlawful uses to cease and also required the removal of associated works including retaining walls, internal fencing, perimeter fencing and an entrance gate.
South Darenth argued that walls and fences up to the relevant height benefited from Class A of Part 2 of Schedule 2 to the GPDO and therefore should not have been required to be removed.
The High Court refused permission to bring the section 289 appeal.
The Inspector had made an Article 3(5) error
The Inspector had reasoned that Article 3(5) of the GPDO prevented the fencing and walls benefiting from permitted development rights because the existing use of the land was unlawful.
The Secretary of State accepted in the High Court that this was wrong. Class A of Part 2 is not permission granted in connection with an existing use in the sense required by Article 3(5).
So the developer was right on that particular legal point. But it did not follow that the enforcement notice could not require the works to be removed.
The Murfitt principle was the decisive answer
The Murfitt principle allows an enforcement notice directed at an unauthorised material change of use to require associated physical works to be removed where those works are integral to, or part and parcel of, the unlawful use.
The principle reflects the statutory power in section 173(4)(a) to restore land to its condition before the breach took place.
In South Darenth the notice itself described the walls, fences and gate as development facilitating the unlawful mixed use. There was no evidence that they had been erected for an independent lawful purpose.
The judge considered it inevitable that the Inspector, had he addressed the point expressly, would have found the works to be part and parcel of the unauthorised use.
Permitted development rights do not create an exception to Murfitt
The important new point was the argument that a work enjoying GPDO permission should be immune from a Murfitt removal requirement.
HHJ Karen Walden-Smith rejected that proposition. The existence of permitted development rights did not create a special class outside the Murfitt principle.
If the physical works are no more than ancillary to the unauthorised use and are genuinely integral to or part and parcel of it, an enforcement notice can require their removal as a remedial step even though those works, considered in isolation, would not themselves be unlawful operational development.
This does not mean an enforcement notice cancels PD rights
South Darenth needs to be read carefully alongside cases such as Duguid and Challinor. An enforcement notice does not simply extinguish lawful permitted development rights across the site.
The Murfitt principle is narrower. It concerns the remedial steps necessary to undo an unauthorised material change of use.
It does not apply to works carried out for a separate lawful use which could continue to serve that lawful use after the enforced use has ceased. Nor does it extend without limit to works which are themselves fundamental or causative development rather than merely ancillary or secondary to the change of use.
The question remains one of fact and degree
Whether a structure is sufficiently integral to an unlawful use is a fact-sensitive planning judgment.
The timing of the works, their purpose, their relationship to the use and whether they have an independent lawful function can all matter.
That makes the drafting of the enforcement notice particularly important. If an authority intends to rely on restoration, the alleged breach and the relationship between the use and associated works should be stated clearly.
The outcome would have been the same anyway
The court also held that, even if the Murfitt analysis had been wrong, the Inspector would necessarily have reached the same overall result because of the findings of inappropriate Green Belt development, landscape harm, harm to neighbouring living conditions and the substantial weight given to Green Belt harm.
The accepted Article 3(5) error therefore did not justify granting permission for a substantive section 289 appeal.
Why South Darenth matters
The case is especially useful where an enforcement notice attacks an unauthorised use but also requires removal of fences, hardstanding, containers or other works which may individually have immunity or permitted development rights.
The correct question is not simply whether the work needed planning permission when erected. It is also whether the work is an ancillary and integral part of the unlawful use which the notice is lawfully requiring to cease.
See Planning Geek’s guide to planning enforcement notices for the wider rules on alleged breaches and remedial requirements.
Read the full South Darenth judgment
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South Darenth Murfitt Principle Case Law Page Updated: 10th September 2026