Running an enforcement and a planning appeal together

When the same land carries a refused planning application and an enforcement notice, you end up with two appeals under different sections, with different deadlines and different grounds, in front of the Planning Inspectorate at the same time. Ask for them to be linked at the point you lodge, so one inspector decides both on one set of evidence, and build the two cases so they cannot be read as contradicting each other.

That last point is where linked appeals go wrong. An appellant who argues one thing about the land in the section 78 appeal and something else in the enforcement appeal hands the authority its closing submission.

When both appeals exist at once

The usual sequence is that a breach happens, the authority invites a retrospective application, the application is refused, and the authority serves an enforcement notice either before or shortly after that refusal.

The section 78 appeal against the refusal must be lodged within six months of the decision notice, or twelve weeks for a householder appeal. The enforcement notice appeal under section 174 has a hard deadline: it must be received before the date on which the notice takes effect, which is normally 28 days after service. Miss that and the notice becomes final and unchallengeable, whatever happens to the other appeal.

An enforcement appeal suspends the notice until the appeal is determined or withdrawn. The section 78 appeal suspends nothing, because there is nothing to suspend.

Asking the Inspectorate to link them

There is no form for this. Say it in the covering material for both appeals: give both appeal references as soon as you have them, identify the land as the same, list the issues common to both, and ask that they be determined together by the same inspector.

Do it early. Once the appeals are allocated to different inspectors with different timetables, linking becomes harder and may mean one case is held while the other catches up.

Tell the authority you have asked, because an authority that supports the request makes it almost automatic, and an authority taken by surprise will object to the delay.

Evidence that serves both

Most of the evidence base is shared: the site description, planning history, the development plan and policy framework, the character of the area, highway and amenity evidence, and the plans.

Structure it once and cross-refer. A single statement of case with a common factual section and two clearly separated argument sections reads better than two documents that repeat each other with small variations, and small variations are exactly what gets picked apart.

Where the enforcement appeal includes a factual ground, keep that evidence separate and complete. Immunity evidence under ground (d) is documentary and chronological, and it should not be mixed into the planning merits material. Reading how inspectors have handled comparable combinations is worth the time, with the caution about treating decisions as indicative rather than binding set out in using appeal decisions in a planning application.

Risk of inconsistent positions

Four inconsistencies turn up repeatedly.

Arguing in the section 78 appeal that a reduced scheme is acceptable, while arguing in the enforcement appeal that the larger built development should be permitted on ground (a).

Pleading ground (d) immunity on the basis that a use began many years ago, while the refused application described the use as new.

Describing the planning unit one way for the purposes of the application and another way to defeat the notice.

And accepting harm in the enforcement appeal as a basis for a shorter compliance period, while denying the same harm in the planning appeal.

Write both cases, then read them together as a hostile reader would. If a sentence in one would be quoted against you in the other, change it or explain the difference openly.

Procedure where the two differ

The Inspectorate decides the procedure for each appeal separately, so one may be set for written representations and the other for a hearing or an inquiry.

Where they are linked and the procedures differ, the practical outcome is usually that both are dealt with under the more formal of the two, because an inspector hearing oral evidence on one set of issues cannot sensibly decide the overlapping issues on paper. Say which procedure you want and why, with reference to the number of witnesses, the amount of factual dispute and whether cross-examination is needed.

Third parties have a role in both, and their rights differ by procedure. The practical consequences are covered in third party involvement in someone else's appeal.

Fees payable on each

Neither appeal attracts a fee payable to the Planning Inspectorate.

A ground (a) appeal is different in one respect: it carries a deemed application for planning permission, and a fee is payable in respect of that deemed application. Check the current fee regulations for the amount, because the figures are indexed and change.

Budget separately for the real costs, which are professional fees and, on an inquiry, counsel. Costs awards between parties are possible on grounds of unreasonable behaviour, and an inconsistent case run across two linked appeals is the kind of behaviour that attracts an application.

There is a second cost people forget. Running two appeals doubles the correspondence, the document management and the number of deadlines to track, and on a small scheme that administrative load can exceed the professional fees. Decide at the outset who in the team holds the master timetable.

Sequencing if linking is refused

If the appeals stay separate, decide which you want determined first and say so.

Where the planning merits are strong, having the section 78 appeal decided first can resolve the enforcement position entirely, because a grant of permission for the development removes the basis for the notice. Where the merits are weak but a factual ground is strong, the enforcement appeal is the one to push, because ground (b), (c) or (d) can end the matter without any planning judgement.

Keep one eye on the restriction on ground (a). It closes the merits ground where permission for the same development was refused, a section 78 appeal was dismissed, and the enforcement notice was issued within two years of that appeal decision. A notice served before the appeal was decided is not caught, but the ordering of future notices matters, and that calculation should be in your advice note rather than discovered later.

Your policy case still has to be set out properly in both appeals, which is the work a Planning Statement does at application stage and your statement of case repeats on appeal.

To see which supporting documents an appeal or a fresh application is likely to need, browse all 66 PlanScope report types.

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.