Ground (a) appeals against an enforcement notice

Ground (a) is the ground of appeal that asks an inspector to grant planning permission for what has been built or what is being done, rather than arguing about whether a breach occurred. It sits in section 174(2)(a) of the Town and Country Planning Act 1990, and for a landlord who has converted a house into flats or run an HMO without permission, it is usually the only route to a lawful position once a notice has been served.

That is because of section 70C. Once an enforcement notice has been issued, the authority can decline to determine a retrospective planning application for the same matters, which closes the ordinary application route and leaves the appeal.

The grounds in outline

Section 174(2) sets out seven grounds, and an appellant may rely on more than one:

• (a) planning permission ought to be granted, or the condition or limitation ought to be discharged
• (b) the matters alleged in the notice have not occurred
• (c) those matters, if they occurred, do not constitute a breach of planning control
• (d) at the date the notice was issued, no enforcement action could be taken because the time limit had passed
• (e) copies of the notice were not served as required by section 172
• (f) the steps required exceed what is necessary to remedy the breach or any injury to amenity
• (g) the period for compliance falls short of what should reasonably be allowed

Grounds (b), (c) and (d) dispute the notice. Ground (a) accepts the description of what is happening and argues that it is acceptable in planning terms. Grounds (f) and (g) accept the breach and argue about the remedy and the timetable.

The appeal must be made before the date the notice takes effect. Miss that date and the notice takes effect, the right of appeal is gone, and non-compliance becomes a criminal offence. Diary it from the notice, not from the covering letter.

What ground (a) argues

The argument is a planning merits argument, determined under section 38(6) of the Planning and Compulsory Purchase Act 2004: in accordance with the development plan unless material considerations indicate otherwise. Nothing about the fact that the development already exists changes the test.

For residential conversions and HMOs, the issues that decide these appeals are predictable. Amenity of the occupiers, including room sizes, outlook and natural light. Amenity of neighbours, usually noise, overlooking and comings and goings. Parking and highway safety where the local plan has a standard. Refuse and recycling storage, which sounds trivial and is cited in refusals constantly. And, in a designated area, the effect on character.

Where a local plan policy sets a threshold for concentrations of shared housing in a street or ward, that policy will be applied to the deemed application, and an appellant who has not looked it up will meet it for the first time in the authority's statement.

The fee and the deemed application

Pleading ground (a) creates a deemed planning application under section 177(5), and a fee is payable for it at twice the rate of an equivalent ordinary application. The Planning Inspectorate specifies a date for payment when the appeal is validated.

If the fee is not paid by that date, ground (a) and the deemed application lapse and the appeal proceeds on the other grounds only. There is no discretion to bring it back. This is the most avoidable loss in enforcement work and it happens every year.

Interaction with section 70C

Section 70C, inserted by the Localism Act 2011, lets an authority decline to determine an application for planning permission where the development is the subject of a pre-existing enforcement notice and the application relates to the same matters. Authorities use it routinely.

The practical consequence is a sequencing decision. If the breach is capable of being made acceptable, an application submitted before any notice is issued keeps the ordinary route open, with an ordinary fee and an ordinary appeal if it is refused. Once a notice arrives, that door tends to close and the double fee applies.

So the moment an authority opens an enforcement investigation, the question is whether to apply now. That is a commercial judgement about whether the scheme is likely to be acceptable, and it is worth taking advice on quickly rather than waiting to see what the council does.

Choosing grounds and the risk of weak ones

Plead the grounds that are available in fact, and prepare each one you plead. A ground (d) immunity case needs evidence of continuous use or existence for the statutory period, which is ten years for most breaches in England following changes made by the Levelling-up and Regeneration Act 2023. The commencement arrangements distinguish between breaches before and after the relevant date, so check the position for your specific breach.

There is a tension between grounds worth thinking about. A detailed immunity case fixes a start date in the evidence, and if the immunity argument fails, that date is now established and available to the inspector when considering the merits. Decide which ground is your primary case and write the statement so that the secondary grounds support rather than undercut it.

Ground (f) is underused. Where a notice requires a building to be demolished when removing a mezzanine and restoring a door opening would remedy the breach, ground (f) is the argument, and inspectors do vary requirements even where they refuse permission under ground (a).

Evidence on the planning merits

Treat the deemed application as an application. That means measured plans of what actually exists, not the drawings from a previous scheme. Room by room areas against the nationally described space standard where the local plan applies it. A parking assessment where parking is the objection. An acoustic report where noise is the objection, prepared by a suitably qualified author.

Written representations suit most straightforward cases. A hearing suits a case that turns on a handful of contested planning judgements. An inquiry, with witnesses and cross examination, suits a case with real factual dispute or a large financial stake, and it costs accordingly.

Assemble the supporting documents that the authority would have required had the application been made in the ordinary way. Where an emerging local plan is close to adoption and the authority argues that a grant would be premature, deal with prematurity in the statement of case rather than leaving it to be raised against you.

Costs exposure

Costs in appeals follow unreasonable behaviour rather than the result. Pleading ground (a) and then submitting nothing but an assertion that the development is acceptable is the standard example of unreasonable behaviour on the appellant's side, and authorities do apply.

The reverse is also true. An authority that issues a notice without considering whether a lesser requirement would remedy the breach, or that fails to engage with evidence submitted before the notice, exposes itself. Keep a written record of what you offered the authority and when.

Budget the appeal properly before starting it. The deemed application fee, the technical reports and the professional time add up, and the cost of the documents is usually a smaller line than people expect once the alternative is losing the use entirely. See PlanScope pricing if you are comparing what drafting the supporting documents costs against consultant quotations.

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.