Challenging an enforcement appeal decision under s289

A section 289 appeal is the route to the High Court against an inspector's decision on an enforcement notice appeal. It needs the court's permission, it has to be started within 28 days, and it is confined to points of law. If the complaint is that the inspector reached the wrong planning judgement on the evidence, there is nothing here for you, and saying so early saves a client a great deal of money.

Section 289 of the Town and Country Planning Act 1990 covers decisions on appeals against enforcement notices under section 174, and decisions on appeals about lawful development certificates under section 195.

Why enforcement decisions use a different route

Ordinary planning appeal decisions are challenged by statutory review under section 288, which is brought within six weeks and does not require permission at the outset in the same way.

Enforcement decisions sit under section 289 instead, and the differences matter in practice. Permission to appeal is required. The time limit is shorter. The appeal is against the decision on a point of law rather than an application to quash, and the procedural rules that govern it are those for appeals rather than for judicial review.

There is a practical reason for the distinction. An enforcement notice carries criminal consequences once the compliance period expires, so Parliament built in a filter to stop hopeless challenges being used to postpone them.

The consequence for advisers is that the two routes are not interchangeable, and choosing the wrong one wastes the only window you have.

Permission to appeal and the test applied

Permission comes from the High Court, and the application is the first step rather than a formality. The court asks whether the proposed appeal has a real prospect of success on a point of law, or whether there is some other compelling reason for it to be heard.

Real prospect means more than arguable but less than probable. In practice the application has to identify the error with precision: which passage of the decision, what the inspector said, which legal principle or policy it misapplied, and why the outcome might have been different had the error not been made.

That last element is the one applications underestimate. An error that could not have affected the outcome will not get permission, because the court will not remit a decision that would be reached again.

Where permission is refused on the papers, there may be an opportunity to renew, depending on the rules in force. Take advice on that at the point of refusal rather than assuming it.

The time limit and how strict it is

The application for permission must be made within 28 days of the decision. Count it from the date the decision is given, diarise it the day the decision arrives, and work backwards from it.

Unlike the six week statutory period for a section 288 challenge, which the court cannot extend, the 28 day period sits in the court rules and is capable of extension in principle. Do not rely on that. The courts approach extensions restrictively in this context, and an application made late begins with an obstacle that has nothing to do with the merits.

The practical problem is that 28 days is short for the work involved. You need the decision analysed, counsel instructed, the grounds settled and the paperwork filed. On a decision issued just before a holiday period, that is uncomfortable.

So read the decision on the day it arrives, with the question of legal error in mind, and take a view within the first week rather than the fourth.

Grounds that succeed and grounds that do not

The errors that get permission are recognisable. Misinterpretation of a statutory provision or a development plan policy. Failure to give adequate reasons, so that the losing party cannot understand why they lost on a principal issue. Taking into account something irrelevant, or failing to take into account something the inspector was required to consider. Procedural unfairness, such as deciding a point neither party had the chance to address. A conclusion no reasonable inspector could have reached on the material.

The grounds that fail are equally recognisable. Disagreement with the weight the inspector gave to a consideration. Disagreement with findings of fact. An argument that the evidence should have been read differently. A complaint that the inspector preferred the council's witness. Weight and fact are for the inspector, and the court says so repeatedly.

The boundary case is reasons. A decision that deals shortly with an issue is not unlawful simply for being short, but a decision that leaves a principal issue unaddressed, or gives reasons that contradict each other, may be.

Read the decision as a whole and in a straightforward way, which is how the court will read it. Isolated sentences pulled out of context rarely establish anything.

The notice while the challenge runs

An enforcement notice is of no effect while an appeal under section 174 is pending. Once the inspector has decided that appeal, that protection ends and the notice takes effect, with its compliance period running.

Section 289 contains a separate power. The court may, on application, order that the enforcement notice have no effect pending the final determination of the section 289 appeal. That order is not automatic and it has to be applied for.

Get that application in at the same time as the application for permission. Without it, the compliance period continues to run while the court process takes its course, and failure to comply with an effective enforcement notice is an offence under section 179 of the 1990 Act.

Advise the client in writing about the criminal exposure. This is the point where clients most often assume that a pending court case suspends everything, and it does not.

What the court can actually give you

If the appeal succeeds, the usual remedy is that the decision is quashed and the matter is remitted to the Secretary of State for redetermination. The court does not substitute its own view of the planning merits, and it does not grant permission for the development.

So a successful section 289 appeal buys a rehearing, not an outcome. The same inspectorate will decide the appeal again, applying the law correctly, and it may reach the same conclusion by a better route. That is worth explaining to a client before the costs are incurred.

Costs follow the event in the ordinary way, so an unsuccessful appellant can expect to pay the Secretary of State's costs as well as their own. Set the exposure out at the start.

Practical alternatives worth weighing first

Before anyone instructs counsel, put the alternatives on the table.

A fresh planning application addressing the reasons the inspector gave is often faster, cheaper and more likely to resolve the position. Where the inspector's objection is to a specific element, an application for the development without that element may be granted, and the commercial question of resubmission against challenge is the same one covered in our note on choosing between resubmission and appeal.

An application for a lawful development certificate is worth considering where the real dispute is about the facts of the planning history rather than about the merits. Where the difficulty is the wording or effect of a condition on an existing permission, the narrower section 73 route may deal with it, and its limits are set out in our note on section 73 refusals.

Negotiating an extended compliance period with the authority is also available and frequently overlooked. Councils have a discretion about when to prosecute, and a credible programme to regularise or remove the breach often buys the time a court challenge would have cost.

Whichever route you take, the supporting case has to be written as carefully as the original should have been. A Planning Statement that answers the inspector's findings point by point is the document that makes a fresh application work.

This is general guidance, not legal advice. A section 289 appeal is court litigation with criminal consequences in the background, and specialist legal advice should be taken immediately on receipt of the decision. Enter your postcode on PlanScope to see which documents a regularising application is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.