Losing ground (a) after a refused retrospective appeal

If you apply retrospectively to regularise a breach, lose, appeal under section 78 and lose again, you can no longer argue the planning merits a third time on an enforcement notice appeal. That is the effect of the amendments the Levelling-up and Regeneration Act 2023 made to section 174 of the Town and Country Planning Act 1990: ground (a), which asks the inspector to grant planning permission for the matters alleged in the notice, is closed off where permission for the same development was refused, that refusal was appealed and dismissed, and the enforcement notice was issued within two years of the appeal decision.

A refused retrospective application on its own, with no section 78 appeal, is a different case. Read the statutory wording carefully before advising anyone that their ground (a) has gone, because the sequence matters.

The two routes a breach can take

An unauthorised building or an unauthorised use can be regularised in two ways, and the choice is strategic.

The first route is a retrospective planning application. You apply for permission for what has already been done, the authority determines it, and if it refuses you may appeal under section 78. The second route is to wait, and if the authority serves an enforcement notice, appeal that notice under section 174 on whichever of grounds (a) to (g) apply.

Ground (a) is the merits ground: it asserts that permission ought to be granted for what is alleged. On a ground (a) appeal, section 177(5) treats an application for planning permission as deemed to have been made, and the appeal fee reflects that.

The other grounds are factual or procedural. Ground (b) says the breach has not occurred as a matter of fact, ground (c) that the matters do not constitute a breach, ground (d) that the time for enforcement has expired, and grounds (e) to (g) cover service defects, excessive requirements and unreasonable compliance periods. None of them are affected by the restriction.

What changed about using both routes

The restriction took effect on 25 April 2024 under the regulations that brought the provision into force, SI 2024/452. It does not apply to enforcement notices that were issued, and not withdrawn, before that date.

The amendments were explained as removing a third attempt at the merits. The old sequence allowed an applicant to apply, be refused, appeal and lose, then wait for an enforcement notice and run the planning merits once more in front of a second inspector. That is the pattern now blocked.

The same regulations carried the change to the enforcement time limits, moving the four year periods in England to ten years, with transitional provisions protecting breaches that had already become immune. Those two reforms arrived together and are often confused, so keep them separate in advice.

Where a refused application closes the ground

The conditions are cumulative, and each one is a question of fact.

The development must be the same as, or substantially the same as, the matters alleged in the notice. The refusal must have been appealed to the Secretary of State under section 78. That appeal must have been dismissed. And the enforcement notice must have been issued within two years of the appeal decision.

Break any link and ground (a) survives. A refusal that was never appealed, a notice issued three years after the dismissal, or a notice alleging materially different matters all leave the merits ground open.

That last point is where arguments will concentrate. If the notice alleges a use or an operation described differently from the application that was refused, there is a genuine question about whether it concerns the same development, and it is worth putting the two descriptions side by side before conceding.

Sequencing a retrospective application and an appeal

The order you choose now has consequences that outlast the first decision.

Running the retrospective application first gives you a faster and less costly route, the chance of negotiated conditions, and a decision notice you can work with. The cost is that a refusal followed by a dismissed appeal spends your merits argument.

Waiting for a notice keeps ground (a) intact, but you accept the risk of a notice with a short compliance period, the criminal liability that follows non-compliance, and the practical difficulty of financing or selling a property with a live notice registered against it.

The decision usually turns on how good the planning case is. A strong case belongs in an application, where it can be approved. A weak case on a long standing breach may be better served by grounds (b), (c) or (d), which do not depend on the merits at all.

Note that section 70C lets the authority decline to determine a retrospective application once an enforcement notice has been issued, so the routes are not freely interchangeable in either direction.

Risk assessment before applying

Before advising a client to regularise, work through this sequence:

1. Establish the date the breach began, and whether the relevant immunity period has already run.
2. Establish whether a lawful development certificate under section 191 would succeed, because a certificate is a better outcome than a permission.
3. Assess the planning merits honestly against the adopted development plan and national policy.
4. Check whether any earlier application or appeal has already been made for the same development, and when any appeal was decided.
5. Decide whether an application, a certificate application or silence serves the client best, and record the advice.

Step two is skipped more often than it should be. Where the breach is old enough to be immune, an application for a certificate of lawfulness of existing use or development settles the matter without ever engaging the merits.

Evidence to keep either way

Immunity cases are won on documents, and the documents are always worse than the client remembers. Tenancy agreements, council tax records, utility bills, bank statements showing rent received, dated photographs, delivery notes and statutory declarations from neighbours all help.

Start the file on the day you take the instruction. Evidence collected in a hurry after a notice lands is both weaker and more expensive.

Advising a client already in breach

The conversation is uncomfortable and should be direct. Tell them what the immunity position looks like, what the merits look like, and that applying retrospectively and losing an appeal may close the merits route for two years.

Also tell them what a notice does. Non-compliance with an enforcement notice is an offence, the notice is a local land charge, and a stop notice can halt activity before any appeal is decided.

The policy framework for a retrospective application is no different from any other, and the Planning Statement carries the same burden of setting out the development plan position and the material considerations. Where the development plan is itself in flux, the position on plan making reform and emerging plans will shape what weight the authority gives emerging policy, and the same pattern of staged start dates runs through Schedule 3 SuDS and its approving body.

The position set out here is as at publication. Check the current text of section 174 on legislation.gov.uk and follow changes through the UK planning law updates timeline, because the start dates and transitional provisions in this area have moved more than once.

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.