Retrospective application against appealing on ground (a)

If unauthorised work is already on the ground, you have two routes to regularise it, and choosing between a retrospective application vs ground a appeal is a decision with a deadline attached. A retrospective application under section 73A of the Town and Country Planning Act 1990 asks the council to grant permission for what has been built or started. An appeal on ground (a) of section 174 asks the Planning Inspectorate to grant it instead, after an enforcement notice has been issued.

The routes are not interchangeable, and running them in the wrong order can remove one of them altogether.

What each route puts before the decision maker

A section 73A application is an ordinary planning application in everything but tense. It needs the same drawings, the same supporting documents, the same ownership certificates. The council assesses it against the adopted local plan and national policy as it stands now, decides it under its scheme of delegation and issues a decision notice with a right of appeal if refused.

An appeal on ground (a) argues that planning permission ought to be granted for what is alleged in the notice, or that the condition complained of ought to be discharged. Section 177(5) treats the appeal as including a deemed application for permission, so the inspector is deciding a planning application as well as the notice.

That difference shapes the evidence. A section 73A application is read by a case officer who may negotiate amendments. A ground (a) appeal is read by an inspector who will not negotiate and who sees the breach, the council's enforcement case and your planning case at the same time.

Fees and determination periods

A retrospective application carries the normal fee for the category of development. A ground (a) appeal carries no appeal fee, but a fee is payable for the deemed application and the ground falls away if it is not paid. Both figures sit in the fee regulations and are indexed, so check the current schedule rather than relying on a figure from an old quote.

The timing contrast is the practical one. An application has a determination period measured in weeks and can be amended as it goes. An appeal has a fixed deadline on the way in, because an enforcement notice appeal has to be made before the date the notice takes effect, and then runs to the Inspectorate's timetable rather than yours.

Deemed permission on a successful ground (a) appeal

Win on ground (a) and permission is granted for the matters stated in the notice, subject to any conditions the inspector imposes. The notice itself is quashed to that extent. Inspectors routinely grant something narrower than what was built: permission for the structure but not the use, or permission conditioned on reducing a height, replacing a material or restricting hours.

Partial success is common enough that you should plan for it. Decide in advance which elements you can live without, and say so in the statement of case rather than defending everything with equal force.

A deemed permission is a planning permission like any other. It can be varied later under section 73, and the conditions attached to it are enforceable in the ordinary way through a breach of condition notice.

Running both at once and the risks

This is where the sequencing traps sit, and both of them were put there deliberately.

Section 70C of the 1990 Act allows a local planning authority to decline to determine an application for permission for development that is already the subject of an enforcement notice, where the application overlaps with the matters stated in the notice. So once a notice is out, a retrospective application may simply be refused a hearing.

Running the other way, section 174(2A) removes ground (a) where the notice was issued after a related application was made and before the determination period for that application expired. Submitting an application and then receiving a notice inside the eight or thirteen weeks can therefore cost you the merits ground on appeal.

The practical rule is to pick a route and commit to it, early, in writing. Where a notice has already been served, ground (a) is usually the live route. Where nothing has been served and the council is still at the warning letter or planning contravention notice stage, the application route keeps more options open.

Evidence each route needs

Both routes need the same planning case: policy compliance, amenity, highway safety, design, and whatever the specific issue is. The difference is everything around it.

For a section 73A application, expect to supply as-built drawings rather than proposals, a survey of what exists, and a Planning Statement that deals with the fact of the breach without arguing about it. Councils are not supposed to treat the retrospective nature of an application as a reason for refusal in itself, and the statement should keep the assessment on the planning merits.

For a ground (a) appeal, add the notice itself, the schedule of alleged matters, the requirements, and a careful reading of whether the notice describes what is actually there. Where the notice overstates the breach, grounds (b), (c) or (f) may be stronger than (a), and most successful enforcement appeals turn on the drafting of the notice rather than on policy.

Whether a retrospective application goes to committee or is decided under delegated powers also affects the evidence you lead, and the difference between committee determination and a delegated decision is worth checking in the council's scheme of delegation before submission.

Immunity and the time limits

Before choosing either route, check whether enforcement action was open to the council at all. The Levelling-up and Regeneration Act 2023 moved the enforcement time limits in England towards a single ten year period for all breaches, replacing the previous four year rules for operational development and change of use to a single dwellinghouse. Commencement details and transitional arrangements matter here, so verify the current position on legislation.gov.uk before advising, and remember that a lawful development certificate under section 191 is the only formal way to confirm immunity.

Conditions imposed in each

Councils granting retrospective permission tend to impose conditions requiring remedial works within a stated period: a boundary treatment, a landscaping scheme, a surface water detail, restricted hours. Those conditions are negotiable in correspondence before the decision.

Inspectors granting permission on ground (a) impose conditions without discussion. They are drafted from the evidence in front of them, which is a reason to put a suggested list of conditions in your appeal statement. A suggested condition that solves the council's objection is often what turns a dismissal into a split decision.

Choosing a route after a notice is served

Read the notice first, and read it closely. Check the date it takes effect, because that is your appeal deadline and it is not extendable. Check the land it covers, the matters alleged, the steps required and the compliance period.

Then decide. If the notice is accurate and the development is defensible on policy, appeal on ground (a) and pay the deemed application fee. If the notice is inaccurate, lead on the technical grounds and keep (a) in reserve. If no notice exists and the council is open to discussion, a section 73A application with a pre-application conversation behind it is usually faster and costs less.

A draft can set out the policy case and the as-built description in a defensible structure, with missing site facts flagged rather than invented. Browse the PlanScope report types to see what a regularisation case usually needs, or see pricing before you start.

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.