The Planning Inspectorate- Wales

Making Your Enforcement Appeal (Guide)

How to appeal against an enforcement notice

You can send your appeal to us by post, by fax, by e-mail, or deliver it by hand to the address below. You should keep the fax transmission report, and recorded delivery numbers, or if you deliver your appeal by hand ask for a dated receipt.

The Planning Inspectorate
Crown Buildings
Cathays Park
Cardiff
CF10 3NQ

Helpline: 029 2082 3866
Fax: 029 2082 5150
E-mail: wales@planning-inspectorate.gsi.gov.uk

If your appeal arrives ‘out of time’, the postmark on the envelope will be examined to see whether, according to the postage paid, it should normally have been received before the date when the enforcement notice took effect. But if the postmark is unclear and you cannot supply proof of posting in time to be received before that date, your appeal will not be accepted.

You should fill in three copies of the appeal form. Send one to us, send one to the LPA and the other is for you to keep. You can use appeal forms from our website. Our website address is: www.planning-inspectorate.gsi.gov.uk

Grounds of appeal

Your enforcement appeal may be made on any one or more of the grounds in section 174 (2) of the Town and Country Planning Act 1990, as amended by the Planning and Compensation Act 1991. If you decide to appeal, you should indicate the grounds of appeal in the appropriate box on the appeal form. Further grounds of appeal may be introduced if we think they are justified. What follows is a summary of the grounds. You will have to consider which of them apply to your appeal.

Ground (a)

That planning permission should be granted for what is alleged in the enforcement notice, or that the condition which is alleged not to have been complied with should be discharged.

You will normally have to pay a fee for the deemed planning application, which is part of every enforcement appeal, for this ground to be considered. This is because the deemed application and ground (a) raise the same issues as a planning application. The notes accompanying the enforcement notice should advise you whether a fee is payable and how much the fee will be. You may then send in the fee with your appeal, if you want the Inspector to consider the planning merits of your case. If you do not send in the fee with your appeal form, we will let you know if a fee is payable, the amount and the date by which it must be received. Any fee would have to be paid to your LPA and to the Assembly. If you only put this ground forward and then do not pay the fee, your appeal will lapse. This means that your appeal will end. More information about fees is given on page 21.

In a very few cases an "Environmental Impact Assessment " (EIA) may also be needed before the planning merits of the deemed planning application can be considered.

The enforcement notice will normally state the LPA’s reasons for issuing it and summarise their planning objections. It will explain the reasons they would have had for refusing planning permission, had an application been made to them. For example, the LPA may consider that the living conditions in the neighbourhood have been damaged, or their policy concerning specially designated areas is in danger.

In deciding to issue an enforcement notice, the LPA’s first consideration will have been their development plan policies. If the plan has something to say about the type of development involved in your case, the authority will have followed the plan, unless the balance of other considerations tells against it. National planning policy is given in Planning Policy Wales and Technical Advice Notes, which are available from the Stationery Office and major bookstores. Alternatively, you can look at these, and the LPA’s development plan, at your Council offices, on the Assembly’s website: www.wales.gov.uk or they may be available from your local public library.

Ground (b)

That the breach of planning control alleged in the enforcement notice has not occurred as a matter of fact.

Ground (c)

That there has not been a breach of planning control.

For example because (depending on what the enforcement notice alleges):

the change made in the use of the land was not a material one; or

the operations alleged in the notice did not amount to development; or

the relevant condition imposed on the permission has been complied with because the LPA have misinterpreted the requirements of that condition; or

what has been done or built was within the terms of an existing planning permission; or

the change of use of the land, or the erection of buildings on it, was development permitted by the Town and Country Planning (General Permitted Development) Order which was effective when the development took place (or, in the case of operations, when they began); or

any change made in the use of the land was within the same `use class' in the Town and Country Planning (Use Classes) Order which was effective at the time the change took place.

(These are examples, not a complete list.)

Ground (d)

That, at the time the enforcement notice was issued, it was too late to take enforcement action against the matters stated in the notice.

If you can show that the development occurred more than four or ten years before the notice was issued, in the circumstances explained below, you should usually be able to appeal on ground (d):

Four years: operational development and use as a single dwellinghouse

if you carried out and mostly completed building, engineering, mining or other operations without planning permission;
if you changed the use of any building to use as a single dwellinghouse;
if you failed to comply with a condition of a planning permission prohibiting use of a building as a single dwellinghouse.

Ten years: change of use

if any other breach of planning control is alleged, such as making a change of use of any land;
if you have not met any other condition or limitation subject to which planning permission was granted.

(The ten-year period runs from the date the condition is broken, not from the date of the permission on which the condition is imposed).

Exceptionally, the authority can issue an enforcement notice outside the four or ten-year periods if they can show that they had taken or thought they had taken enforcement action within four or ten years, as the case may be, of the date when planning control rules were first broken. If so, an appeal on ground d is unlikely to succeed.

Ground (e)

The notice was not properly served on everyone with an interest in the land.

Even if you succeed in this ground of appeal, you should be aware that the Inspector or the Assembly might disregard the matter. It depends whether they think the failure to serve a copy of a notice on a person has caused that person injustice.

Ground (f)

That steps required to comply with the requirements of the enforcement notice are excessive and lesser steps would overcome the objections.

Say why you think that what is required in the notice is more than is necessary. You cannot argue that planning permission should be granted under this ground. To grant planning permission, either in whole or in part, you must normally pay a fee. See the advice under ground (a) above. More information about fees is given on page 21.

Ground (g)

The time given to comply with the notice is too short.

You should say what you consider to be a more reasonable period and why.

Stating the facts

Your appeal must state not only the grounds, in section 174(2) of the Act as set out above, on which it is made, but also the facts in support of each chosen ground of appeal.

If you do not provide enough facts when your appeal is first made, we will ask for more. We will impose a 14-day time limit for you to produce the facts. We have power to dismiss your appeal, or not to consider a particular ground of appeal, if you do not provide the further facts or information within the time limit.

You should think carefully about the facts on which you will rely and try to make sure that you do not confuse facts with grounds of appeal. If you appeal, you can state your arguments as well as the facts, if you want. But you must at least state the main facts on which your appeal is based, and you should relate them, if you can, to the grounds of your appeal. It is not enough to copy the wording from the grounds of appeal or to put it into different words.

If we consider that any of your representations contain racist, libellous or abusive comments, we will send them back to you before the Inspector sees them. If you take out the racist or abusive comments, you can send your comments back to us. But we must receive them before the time limit ends.

Examples of facts

In an appeal on ground (a)

The matters you think we should take into account may include, for example, any relevant provision of the development plan or of national planning policy that you think supports what you have done. You may wish to draw the Inspector’s attention to the details of the use or of the operations which are the subject of the enforcement notice, the character of the surrounding area, the uses to which adjoining or nearby premises are put, the length of time for which the use has been carried on and whether any neighbours have complained to you about the activity in that time.

If you do not want to appeal on ground (a), you should consider whether or not to pay the fee for the deemed planning application. If you pay the fee the Inspector will have to consider the deemed application, even though you may not have appealed on ground (a). If you pay the fee you should provide these facts so that they can be taken into account by the Inspector in deciding the deemed application.

In an appeal on ground (b)

This ground lets you maintain that the Council's allegation in the notice has not occurred, as a matter of fact. You should therefore state the relevant facts and show how they differ from what is alleged in the notice.

In an appeal on ground (c)

Whatever the allegation, you should explain precisely why you consider there has been no breach of planning control. For example, when the allegation in the notice is the making of a material change of use of the property without the grant of planning permission, explain as far as you can what the previous use of the land was, when it began and whether it was authorised by a planning permission which is still valid for what you are doing. If the enforcement notice alleges a breach of condition of a planning permission, state what steps have been taken to comply with the condition. If it relates to operations which you think were development permitted by the Town and Country Planning (General Permitted Development) Order, state why you think so. If you are in doubt about what is required, state briefly, with relevant dates, what permissions have been granted in respect of the land, the various uses carried on at the property, or the building or other operations carried out.

In an appeal on ground (d)

It is not enough to say: ‘The breach of planning control occurred more than ten years ago’, or ‘The building was finished more than four years before the notice was issued’ or ‘The change to the present use occurred more than ten years ago’. But you could say, for example: ‘The present use was started by the late Mr George Smith in the summer of 1990. He continued it until his death in 1997. Then I bought the premises and have carried on the same use continuously until now’, or ‘The foundations for the building were dug in March 1998. Work proceeded slowly at first because the builder I employed was doing other work, but he started full-time work on the building in the summer of that year, the roof was tiled by the end of September and the building was almost completed and put to use by mid-October 1998.’

In an appeal on ground (e)

State the name and address of the person who you think ought to have been served with a copy of the notice and the nature of his or her interest (for example, joint owner, sub-tenant). Before making an appeal on this ground, you should check carefully that the person concerned has not been served with a copy of the notice. You should also consider whether you or that person has been caused a serious problem by the failure. It is not normally considered necessary to serve a separate copy of a notice on members of the same family living together.

In an appeal on ground (f)

State why you think that any step or steps required by the enforcement notice is more than is necessary. You cannot argue that planning permission should be granted under this ground. To grant planning permission, either in whole or in part, you must normally pay the deemed application fee.

In an appeal on ground (g)

Say why you think that the time allowed for complying with the enforcement notice is too short. You should say what period you consider would be adequate, and why.

If you want to challenge the validity of the enforcement notice

If you think the enforcement notice is wrong, because of the way it is written or authorised, you can raise the matter separately from your chosen grounds of appeal against the notice. To challenge the notice you should tell us the reasons when you submit your appeal, supporting your arguments with relevant facts.

We will ask the LPA for their comments. We might decide that your appeal cannot go ahead because the enforcement notice is not valid. The LPA may later issue a further enforcement notice against you and, if you do not agree with it, you must send another appeal to us. If the position on the validity of the notice is unclear, your appeal will proceed as normal and this matter will be decided by the Inspector or the Assembly.

Environmental impact assessments

It will only be necessary in a very few cases, but you may have to provide an environmental statement with your appeal, giving details of the environmental effects of the development shown in your enforcement notice. Usually, the LPA will give you notice (called a regulation 25 notice) that such a statement is required, at the same time as they serve you with a copy of the enforcement notice. If you do not supply an assessment with your appeal, or within the time we ask for it, the Inspector will not be able to consider the deemed application for planning permission or ground (a). If you think the LPA were wrong to ask for an environmental impact assessment you can apply to us for a direction on whether one is necessary.

The choice of procedure

Written procedure

If everyone agrees, and the appeal is suitable, the Inspector will decide it on the basis of written exchanges of information from you, the LPA and anyone else who has an opinion on your appeal. The information could include maps, plans and photographs but not oral evidence. The Inspector will normally visit the site.

We do not accept tape evidence for appeals under this procedure. This is because we cannot be certain that all parties to the appeal have suitable equipment to play the tape and that identical copies have been sent. You can send a written summary of the tape's content, including photographs.

Hearings and inquiries

Under these procedures the Inspector will decide whether or not to take into account video or sound tapes. He or she will let you know their decision when the hearing or inquiry opens. You must contact the LPA to find out whether they have suitable equipment to play the tape at the hearing or inquiry, or if they will allow you to use your own.

If you, the LPA or we do not agree to the written procedure, we will arrange a hearing or local inquiry. You can find more details of the different procedures in sections 6, 7 and 8.

When you are deciding which procedure to use, you should take into account the following points:

The result of your appeal will depend on the facts and planning arguments.

The written procedure is usually quicker and cheaper.

A hearing is an informal way to give evidence and make oral submissions to the Inspector. Formal cross-examination is not allowed.

You or the LPA can ask for an inquiry, or we can decide that this is the best procedure for your appeal.

At an inquiry or a hearing you can make representations to the Inspector personally and challenge any evidence put forward against your appeal.

To avoid extra costs and to get a decision as quickly as possible, most people ask for a hearing or inquiry only if they think it is necessary. The written procedure is the most usual. We may consider an inquiry is essential for taking evidence in person from witnesses or representatives, especially if you have appealed on ground (d).

Fees

Every enforcement appeal includes an application for planning permission. We call this the ‘deemed planning application’. A fee is normally payable for consideration of this, which is double the amount paid for a normal planning application. Half the fee is payable to the LPA and half to Assembly. There is no fee for the appeal itself.

There is, however, a link between the deemed planning application and an appeal on ground (a). Unless the fee is received by both the LPA and the Assembly by the date we ask for it, the deemed planning application and any appeal on ground (a) cannot be considered. Your appeal would then proceed on any other ground(s) made. If, however, ground (a) is the only ground you have put forward, your appeal will lapse. This means that it will come to an end and the enforcement notice will come into effect.

If you do not appeal on ground (a) and you do not want the planning merits of the deemed planning application considered, for example, because you know you would not succeed in getting planning permission for what you have done or you only want to appeal on other grounds, there is no point in paying the fee.

Where more than one person has appealed against the same enforcement notice, only one need pay the fee for the deemed planning application and any appeal on ground (a) to be considered. If this is the case we will let you know. The fee cannot, however, be transferred to another person if the person paying the fee, or who doesn’t have to pay, later withdraws his or her appeal. It is up to you to decide whether or not to pay the fee in case this happens.

If you cannot pay the fee by the date given, we can extend the payment period in exceptional circumstances, but this can only be done before the payment period expires. If you feel that there are exceptional circumstances that prevent you from paying the fee by the date given, let us know straight away. It is too late to do anything if the payment period has passed. The deemed planning application and your appeal on ground (a) will lapse and cannot be reinstated.

No fee is payable when:

Development is carried out at the home of a disabled person to provide access or special facilities needed because s/he is disabled.

If ‘permitted development’ rights have been withdrawn.

A condition on an earlier permission removes rights under the Use Classes Order.

Before the notice was issued you applied for planning permission for the same development shown in the notice, you paid the fee to the LPA and you had not received the LPA’s decision on your application.

Before the effective date of the enforcement notice you made an appeal to the Assembly against the refusal of the LPA to grant planning permission for the same development.

Part of the normal fee is payable when:

A parish or community council carries out the development.

A club, society or other non-profit making organisation carries out the development for:
- changing the use of land to a playing field; or
- carrying out work related to use of land as a playing field (but not including a building).

Refunds of the fee are made when:

Your appeal is withdrawn at least 21 days before the site visit, hearing or local inquiry.

The LPA withdraw their enforcement notice.

You win your appeal on legal ground (b), (c), (d) or (e).

An appeal or enforcement notice is turned away because you or the LPA have failed to meet all the procedures.

An enforcement notice is not valid for legal reasons.

A part refund will be made in the event of overpayment and if the appeal decision changes the description of the development in the enforcement notice and a lower fee should have been charged. If the appeal relates to siting of a caravan, no refund is due because the Inspector usually considers the planning merits of the caravan. This is because planning permission, or a certificate of lawful use or development, is required to obtain a site licence from the LPA. If your appeal succeeds on ground (c) or (d), the Inspector may grant a certificate of lawful use or development if you have specifically asked him or her to do this and have paid the fee.

Who decides your appeal?

You make enforcement appeals to the Assembly. Almost all appeals will be decided by Planning Inspectors. The Assembly can decide any enforcement appeal, but does so in fewer than 2% of cases, usually if there are issues which affect more than just the local area. The Assembly will not decide your appeal just because you have asked for this. But if it does, we will tell you why.

Withdrawing your appeal

You can withdraw your appeal at any time before it is decided. You may want to do this if, for example, you and the LPA reach agreement and can sort out your differences without an appeal. If you decide you want to withdraw your appeal you should phone your case officer straight away and then write to confirm the withdrawal, giving the appeal reference number. You should also tell the LPA immediately. This is especially important if we have arranged for a site visit, hearing or inquiry to take place. If you unreasonably withdraw your appeal after we have made these arrangements, you may have to pay the costs of the other people involved. Section 9 has more information about costs.