Deemed applications under section 177(5)

When you appeal an enforcement notice on ground (a), section 177(5) of the Town and Country Planning Act 1990 treats you as having made a planning application for the development described in the notice. That deemed application is what gives the inspector power to grant permission, and it is the only route to a permission once the notice has been issued. It carries a fee, and if the fee is not paid by the date the Planning Inspectorate sets, the ground (a) appeal and the deemed application fall away.

The other grounds of appeal survive that. Ground (a) is the planning merits argument, and losing it by administrative oversight is the single most avoidable error in enforcement work.

How the deemed application arises

Section 174(2)(a) allows an appeal on the ground that planning permission ought to be granted for the matters stated in the notice, or that a condition or limitation ought to be discharged. Where that ground is pleaded, section 177(5) deems an application to have been made.

The scope of the deemed application is fixed by the notice, not by the appellant. Whatever the local planning authority described as the breach is what the inspector is being asked to permit. This is why the wording of the alleged breach matters so much at the outset, and why an imprecise notice can be as unhelpful to an appellant as to the authority.

Section 177(1) sets out what the inspector can do: grant planning permission for the matters stated in the notice as constituting a breach, discharge a condition or limitation subject to which a previous permission was granted, and determine any purpose for which the land may lawfully be used.

The fee and what happens if it is missed

A fee is payable for the deemed application, calculated under the current fee regulations. It is set at twice the amount payable for an equivalent ordinary application, and the figures are indexed, so take the number from the current regulations rather than from a previous appeal.

The Inspectorate specifies a date for payment when the appeal is validated. If payment is not made by that date, ground (a) and the deemed application lapse, and the appeal proceeds on the remaining grounds only. There is no discretion to revive it.

Two practical habits prevent this. Diary the payment date the day the appeal is lodged rather than the day the Inspectorate writes. And check the fee calculation independently, because a deemed application for a development whose floorspace is described loosely in the notice can attract a different fee from the one you expected.

What the inspector can grant

Permission can be granted for the whole of the matters in the notice or for part of them. A partial grant is common where, for example, a building is acceptable but its use is not, or where a larger structure would be acceptable at a reduced height.

Conditions can be imposed on a deemed grant in the ordinary way, and they are the usual vehicle for making an unauthorised development acceptable. Restrictions on hours, on the number of vehicles, on external lighting, on landscaping to be planted within a defined period and on the removal of ancillary structures all appear regularly. Permission may also be granted for a limited period.

Where permission is granted, the notice ceases to have effect to the extent of the grant. Where it is granted in part, the notice continues to bite on the rest, and the requirements of the notice need reading against the grant carefully to see what is actually left to be done.

The relationship with the notice's requirements

A successful ground (a) appeal does not automatically dispose of the steps required by the notice. Ground (f), that the steps required exceed what is necessary to remedy the breach or any injury to amenity, is a separate argument and has to be pleaded separately.

Run both where they are available. An appellant who pleads only ground (a) and loses is left with the notice as drafted, including any requirement to restore the land, and inspectors regularly vary requirements under ground (f) even where they refuse permission under ground (a).

The planning merits and the evidence they need

The deemed application is determined on the planning merits, which means section 38(6) of the Planning and Compulsory Purchase Act 2004 applies: the determination is made in accordance with the development plan unless material considerations indicate otherwise. Policy compliance, harm and benefits are assessed exactly as they would be on a fresh application.

So the evidence has to be a fresh application's evidence. In practice that means:

1. A statement of case setting out each relevant development plan policy and the proposal's compliance with it.
2. Plans and elevations of what is actually on the ground, surveyed rather than reconstructed from the original drawings.
3. Technical evidence proportionate to the harm alleged, which on a noise or highways allegation means a report from a suitably qualified author.
4. Any statutory assessment the site triggers, unchanged by the fact that the development is already built.

That last point catches people out. If the site lies in a flood zone, the sequential test has to be addressed on the deemed application, and the fact that the building already exists does not remove the policy requirement. Where a European site could be affected, the competent authority's duty to carry out a Habitats Regulations Assessment applies to the deemed application in the same way. Where an emerging local plan is close to adoption, an argument about prematurity may be run against you, and it is better to deal with it in the statement of case than at the hearing.

Where the deemed application is the only route left

Three situations come up repeatedly. The time limit for challenging a refusal has expired and there is no live application. The development is immune from enforcement in part but not in whole, so a certificate covers some of it and a notice covers the rest. Or a lawful development certificate has been refused because the evidence does not establish the necessary period of continuous use or existence.

Enforcement time limits changed under the Levelling-up and Regeneration Act 2023, which moved England to a single ten year period for most breaches. The commencement arrangements distinguish between breaches occurring before and after the relevant date, so check the position for the specific breach rather than applying the new period generally.

In each of these, the deemed application is the only mechanism that can produce a permission, and the appeal is therefore doing two jobs at once. Prepare it as an application first and an appeal second.

One point of genuine uncertainty is worth flagging. Where the breach is historic and the evidence of its start date is thin, an appellant often has a choice between running ground (d) on immunity and ground (a) on the merits. Running both is normal and sensible. But the evidence for one can undercut the other, because a detailed account of continuous use since a particular year invites the authority to test it, and a failed immunity case leaves the inspector with a clear finding about when the development began. Decide early which ground is the primary case and write the statement accordingly.

Costs, and a note on tactics

Ground (a) attracts costs applications when it is run without evidence. An appellant who pleads the planning merits and then submits nothing beyond an assertion that the development is acceptable is exposed, and authorities do apply.

Assemble the supporting documents the authority would have required on a fresh application, and submit them with the statement of case rather than holding them back. An inspector who can see a properly evidenced case is being asked to grant permission, and one who cannot is being asked to take a view.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.