Deemed planning application on a ground (a) appeal
Appealing an enforcement notice on ground (a) automatically puts a planning application in front of an inspector. This explains how the deemed application works, what it costs and what happens when it fails.
A deemed planning application is the application for planning permission that the law treats you as having made the moment you appeal an enforcement notice on ground (a). There is no form to complete and no separate submission to the council. Section 177(5) of the Town and Country Planning Act 1990 attaches it to the appeal automatically, which moves the merits of the unauthorised development away from the council and in front of a planning inspector.
For a landlord who has split a house into flats without consent, or added a rear outbuilding that turned out to need permission, this is usually the only remaining route to a lawful position. It is also the most expensive point in the process to discover how the rules work.
How the deemed application arises
An enforcement notice must be appealed before the date it takes effect, which the notice itself states. Miss that date and there is no appeal at all. Section 174(2) sets out seven grounds, lettered (a) to (g), and you may run several at once.
Ground (a) is the merits ground: that planning permission ought to be granted for what the notice alleges, or that the condition or limitation said to have been breached ought to be discharged. Because permission cannot be granted without an application, section 177(5) supplies one by deeming it to have been made.
One restriction catches people out. Under section 174(2A), ground (a) is not available where the council issued the notice after a planning application for the same matters had been submitted and before the determination period for that application had run out. The provision exists to stop a retrospective application being used to buy time, and it bites whether or not the delay was deliberate.
The fee and what happens if it is not paid
The deemed application attracts a fee under the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012. It is charged at twice the amount payable for an equivalent ordinary application, because the fee covers both the authority and the Secretary of State. Fee figures are indexed and revised, so take the number from the current regulations rather than an old quote.
The Planning Inspectorate writes to the appellant with the amount and a deadline. Pay late and the ground (a) appeal, together with the deemed application, falls away. The remaining grounds survive, but the merits argument is gone, and with it any chance of walking away with a permission.
Where the appellant is a tenant and the freeholder is the one who benefits, the question of who actually writes the cheque is a private matter between them. The Inspectorate cares only that the money arrives.
What an inspector can decide
Section 177(1) gives the inspector a wide power. Permission can be granted for the whole of the matters stated in the notice, or for part of them, and conditions can be imposed. The inspector can also discharge a condition or limitation, and can grant permission for a use that differs from the one the notice describes, provided it is not substantially different in kind.
That partial power matters. A three storey rear addition might be refused while the ground floor element is granted, leaving a notice that requires demolition of the upper parts only. The inspector can vary the notice under section 176 to match.
Where permission is granted, the notice ceases to have effect so far as it is inconsistent with that permission. You end up with a planning permission, subject to conditions, that runs with the land in the ordinary way.
Ground (a) alongside the other grounds
Running ground (a) on its own is rare. Most appellants pair it with at least one technical ground, and the grounds are decided in a logical sequence rather than all at once.
| Ground | What it argues |
|---|---|
| (a) | Permission ought to be granted, or the condition discharged |
| (b) | The matters alleged have not occurred |
| (c) | The matters do not amount to a breach of planning control |
| (d) | No enforcement action could be taken when the notice was issued |
| (e) | Copies of the notice were not served as the Act requires |
| (f) | The required steps go beyond what is needed to remedy the breach |
| (g) | The compliance period is shorter than is reasonable |
Ground (d) is the immunity ground, and it is the one most affected by recent reform. The Levelling-up and Regeneration Act 2023 replaced the four year limits with a single ten year period in England. Commencement and transitional treatment of breaches that were already immune need checking against the current position before anyone relies on the old four year rule.
If ground (b), (c) or (d) succeeds, the notice is quashed and the deemed application never gets considered. Winning on the facts is cleaner than winning on the merits, so the technical grounds go first.
Conditions on a grant and what follows
A permission won on ground (a) is a real permission with real consequences. Conditions can require materials to be changed, hours of use to be limited, parking or refuse storage to be provided, or landscaping to be planted within a stated season. Discharging them is your job afterwards, and the ordinary machinery for that applies, including the section 74A deemed discharge route where a council goes quiet on a condition application.
Community Infrastructure Levy liability can also crystallise, because a grant on the deemed application is a chargeable permission where the floorspace tests are met. Obligations entered into afterwards, and the permission itself, will show up on searches, since planning charges are registered against the title and a buyer's solicitor will find them.
The decision is taken against the development plan under section 38(6) of the Planning and Compulsory Purchase Act 2004, so what counts as the development plan for the site is the first thing to establish. An inspector applies the same policy tests to the deemed application as to any other.
Losing the deemed application
If ground (a) fails and nothing else succeeds, the notice is upheld and the compliance period starts running from the date of the appeal decision, not from the original notice. Everything the notice requires must then be done: cease the use, remove the structure, restore the land.
Failing to comply once that period expires is a criminal offence under section 179, prosecuted in the magistrates' court, and the council can also enter the land and carry out the works itself, recovering its costs from the owner. There is no second appeal.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
An illustrative outbuilding example
Take an illustrative case: a semi-detached house where the owner built a garden room, then let it as a separate studio. The council serves a notice alleging a material change of use to two dwellings and requiring the use to cease. Ground (c) is arguable, because the owner says the room is used by a family member and remains ancillary. Ground (a) runs in the alternative, with a case that a small self contained unit in this location accords with the housing policies of the adopted plan. The fee is paid at the doubled rate. The inspector rejects ground (c) on the evidence of separate utility bills, but grants permission on the deemed application subject to a condition restricting occupation to a single person and requiring cycle parking. The notice falls away.
The written case behind a ground (a) appeal is a policy argument, and it reads much like a planning statement. If you want a starting draft, enter the postcode on PlanScope and work from the report it produces, then have a planning consultant sharpen the policy section before it is submitted.
PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Do I have to pay a separate fee for the deemed application?
Yes. The Planning Inspectorate invoices the deemed application fee separately once the appeal is lodged, and the current fee regulations set it at twice the amount for an equivalent ordinary planning application. If the money does not arrive by the stated deadline, the ground (a) appeal lapses and only the technical grounds remain live.
Can I run ground (a) and still argue the development was immune?
Yes, and most appellants do exactly that. Ground (d) says no enforcement action could be taken when the notice was issued, and it is decided before the merits. Where ground (d) succeeds the notice is quashed outright and the deemed application is never reached, which is a better outcome than a conditional permission.
What happens to the enforcement notice if permission is granted?
The notice ceases to have effect to the extent that it is inconsistent with the permission the inspector grants. Where only part of the development is permitted, the inspector usually varies the notice under section 176 so that the remaining requirements match. You are then left with a conditional permission running with the land.
Is a deemed application the same as a retrospective application?
No. A retrospective application under section 73A is one you submit voluntarily to the council, with the ordinary fee and the ordinary right of appeal. A deemed application only exists because you appealed an enforcement notice on ground (a), it is decided by an inspector, and it carries the doubled fee.
Can I withdraw ground (a) later to avoid the fee?
You can withdraw a ground before the fee deadline, and doing so removes the deemed application and the charge that goes with it. Once withdrawn the merits cannot be revived in that appeal. Appellants sometimes drop ground (a) when a strong immunity case emerges from the council's own evidence.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.