Appeal a planning enforcement notice

If a Local Planning Authority (LPA) considers that development does not benefit from planning permission that should have been sought, it can take enforcement action. 

Further guidance on planning enforcement is in section 14 of the Welsh Government’s Development Management Manual. 

Where the LPA serves an Enforcement Notice, a relevant occupier or person with an interest in the land to which the Enforcement Notice relates has a right of appeal against the notice. Appeals are submitted to PEDW to determine on behalf of the Welsh Ministers. This guidance explains the appeal process. 

Before you make your appeal, you should enter into discussions with the LPA. This may mean that agreement can be reached, and the enforcement notice withdrawn.

• However, any appeal must be lodged before the effective date on the enforcement notice.

A relevant occupier or a person with an interest in the land to which an enforcement notice relates may appeal against it, whether or not the enforcement notice has been served on them. This may include a limited company or unincorporated body in which case the appeal must be made in the name of the company.

‘Interest in the land’ means either a legal or equitable interest in the land. It includes owners, lessees, some tenants and Official Receivers. Mortgagees or other lenders also have an interest in the land (as security for the loan they have advanced to the borrower).

A ‘relevant occupier’ means a person who:

• on the issue date of the enforcement notice occupies the land through the consent of the owner, whether oral, written or implied, and
• continues so to occupy the land when the appeal is brought

More than one person may have a legal interest in the land and their interests may conflict with each other.

PEDW will not send copies of appeal documents to interested persons. However, in all but a few rare cases, all appeal evidence documents will be published to our planning casework portal. Documents can also be inspected on the LPA’s planning register. 

A person who does not have an interest in the land, or is not a relevant occupier, does not have a right of appeal. Even if the LPA serves a copy of the enforcement notice on them.

The procedure for enforcement appeals is set out in the Town and Country Planning (Referred Applications and Appeals Procedure) (Wales) Regulations 2017 (‘the Appeal Regulations’). Enforcement appeals proceed under Part 4 of the Appeal Regulations, as follows:

• You should submit your appeal, before the effective date on the enforcement notice on the relevant appeal form with your full statement of case. 
• The full statement of case is the only opportunity to explain the reasons for the appeal. We would not expect it to exceed 3,000 words. It must include: 
  • a statement specifying the grounds of the appeal, stating the facts on which the appeal is based and containing full particulars of the case; and
  • copies of any supporting documents the appellant proposes to refer to or put forward in evidence.
• There is no fee, unless you want planning permission granted or you wish the Inspector to issue a certificate of lawfulness. You can find further information on this below, under Grounds of Appeal - Grounds (a), (c) and (d).
• A copy of the appeal submission must be sent to the LPA.
• On receipt PEDW will acknowledge that an appeal has been submitted and check it has been submitted in time and with all of the necessary documents. If the appeal is not validly made, the enforcement notice would take full effect from the date on the notice.
• If valid, PEDW will write to the appellant and the LPA confirming the start date for the appeal and estimated timescales for the decision. 
• Within 5 working days of the start date, the LPA must notify any interested parties of the appeal and submit their questionnaire and supporting documents, to PEDW and the appellant. 
• The LPA must submit their full statement of case to PEDW within 4 weeks of the start date for the appeal. It must state: 
  • a response to each ground of appeal;
  • whether the LPA would be prepared to grant planning permission for the matters alleged to constitute a breach of planning control.
• Interested parties may submit a representation within 4 weeks from the start date of the appeal.
• After the 4 week date, PEDW will send copies of any interested party representations to the LPA and the appellant. PEDW will also send a copy of the LPA’s full statement of case to the appellant.
• After the exchange of evidence, if any party wishes to submit comments on the representations of any other party, they must do so within 6 weeks of the start date.
• The Planning Inspector will decide what procedure the appeal should follow and determine the appeal. The Inspector will visit the appeal site before making their decision. 
• For enforcement appeals proceeding by written representations only, PEDW aims to issue a decision within 28 weeks of the start date of the appeal, or if that is not possible, within 3 weeks of the site visit. For enforcement appeals that require a hearing or an inquiry, PEDW aims to issue a decision within 41 weeks of the start date of the appeal, or if that is not possible, within 4 weeks of the event. 

Reasons for your appeal are known as ‘grounds for appeal’ in enforcement cases. Appeals can only be made on certain grounds, which are set out below. You should make it clear what grounds you are pleading and think carefully about the facts on which you will rely. 

Your appeal should clearly and precisely:

• give a statement of facts in support of each chosen ground of appeal
• explain clearly why you disagree with the reasons for issuing the enforcement notice
• explain why the alleged development would either satisfy the local and or national planning policy referred to in the enforcement notice or why they are not relevant
• include full details of any case law cited
• include details of any planning obligation you are proposing in support of your case

Ground (a)

Ground (a) is that planning permission should be granted. Or that a condition referred to in the enforcement notice should be removed. In effect, this is an application for planning permission. Therefore you must pay the full fee to the LPA. 

You cannot appeal on the ground that planning permission should be granted, if the notice was issued after a decision to refuse planning permission for a related development was upheld separately on appeal. 

You cannot appeal on the ground that a condition ought to be discharged, if the notice was issued after a decision to grant planning permission subject to the condition was upheld on an appeal.

Your appeal should:

• Focus upon the planning merits of the development. Do not include information that does not relate to the issues involved. 
• Explain why you disagree with the reasons for issuing the enforcement notice. 

• State the number and the name of the relevant development plan policies or supplementary planning guidance. Explain why you think that any policy referred to in the notice is not relevant or why the development complies with it. Refer to any other policies you consider to be relevant and why. Attach relevant extracts and explain their status. For example, whether the LPA has adopted them and / or whether they form part of the Local Development Plan.

  You do not need to set out national policy such as Future Wales: The National Plan 2040, Planning Policy Wales or Technical Advice Notes. Inspectors have these documents. Although you should refer to any paragraphs by number that you think are relevant.

• Attach any previous planning decisions you think are directly relevant and explain why you consider them to be so. 

You may use photographs (if possible, in colour) to support your case. You must give details of when and where you took them and what they show. 

Ground (b) 

Ground (b) is that the breach of control alleged in the enforcement notice has not occurred as a matter of fact. 

This means you are saying that the development alleged in the notice has not taken place. That the alleged use is not occurring or that the alleged structure has not been erected. You should provide facts to support this. You may wish to show the difference between the actual use (or lack of it) and the allegation in the notice.

Ground (c) 

Ground (c) is that there has not been a breach of planning control. 

You may wish to claim that:

• the operations alleged in the notice are not development, under S55 of the Town and Country Planning Act 1990 (as amended)
• the change of use is not a material one, meaning it is not subject to the requirements of planning control
• the development is permitted by the Town and Country Planning (General Permitted Development) Order 1995 (as amended)
• that the change of use is within the terms of the Town and Country Planning (Use Classes) Order 1987 (as amended)
• what has been done, or built, is within the terms of a planning permission
• you have complied with the relevant condition on a permission

Ground (d)

Ground (d) is that when issuing the enforcement notice it was too late to take enforcement action against the matters stated in the notice. That the notice was issued after one of the following time limits had passed: 

• 4 years for notices alleging operational development. For example building, mining or engineering works.
• 4 years for change of use from a building / part of a building to a single dwellinghouse. This time limit applies where the change to use as a single dwellinghouse involves:
  • development without planning permission
  • a failure to comply with a condition or limitation attached to a planning permission
• 10 years for any other continuous change of use from the date of the breach. This applies to changes of use and to breaches of any conditions attached to previous planning permissions. 

You need to be able to provide evidence to support your case.

Ground (e) 

Ground (e) is that the notice was not properly served on everyone with an interest in the land. 

This means the notice was not served on the correct people or in the correct timeframe. 

This can be disregarded if it did not cause substantial prejudice to anyone’s interests and their ability to participate in the appeal. 

Ground (f)

Ground (f) is that the required steps in the enforcement notice are excessive and lesser steps would overcome the objections.

You should say why you think that the steps are excessive. You should also say what lesser steps you consider would remedy the problem. 

You cannot argue that planning permission should be granted under this ground. If you wish the planning merits of the development to be considered, you must argue that under ground (a).

Ground (g)

Ground (g) is that 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. 

If you intend to appeal solely on this ground, you should consider negotiating the timescale with the LPA. They may be willing to extend the period for compliance, removing the need for an appeal.

S177(1) of the Town and Country Planning Act 1990 (as amended) (’the Act’) gives the Welsh Ministers certain discretionary powers on the determination of an enforcement notice appeal. Section 177(1)(c), enables them to determine, on the date the appeal was made, whether:

• any existing use of the land was lawful
• any operations carried out were lawful
• any matter constituting a failure to comply with a condition or limitation attached to a planning permission was lawful

If your appeal succeeds on Ground (c) or (d) the Inspector may issue a certificate of lawful use or development. This is usually referred to as a lawful development certificate (LDC). 

• An LDC can only be issued if you have specifically asked the Inspector to do so and where you have paid the fee. 

If, exceptionally, the Inspector grants an LDC on your appeal, you will not receive a refund on the fee you paid.

Usually, where an enforcement appeal succeeds on grounds (c) or (d), the notice will be quashed with no grant of an LDC. The appellant will be advised that it is open to them to apply to the LPA for an LDC under section 191 of the Act.

Where the appeal is allowed on ground (a), half the fee paid must be refunded to the appellant.

The full fee must be refunded where: 

• the Welsh Ministers do not accept the appeal as valid
• the Welsh Ministers allow the appeal and quash the enforcement notice if the LPA has failed to comply with the appeal regulations.
• the appeal is allowed under grounds (b) to (f), or the ground that the notice is invalid, or that it contains a defect, error or misdescription which cannot be corrected. 
• the appeal is withdrawn in writing at least 21 days before the date of the inquiry or the date for the inspection of the site in the case of written representation cases. 
• the LPA withdraws the enforcement notice before it takes effect, or the Welsh Ministers decide that the enforcement notice is a nullity.

The sections below follow the order of the enforcement appeal form.

Appellant details 

Add the name of the persons making the appeal. The section 'who can appeal' above explains who can appeal an enforcement notice.

Agent details 

You do not have to use an agent to submit your appeal. If you do decide to use an agent, they will probably complete the appeal form for you.

If you have an agent, we will send all communications including the decision to them. We will not send a copy to you. 

Local planning authority details 

This information will usually be in the enforcement notice you received from the LPA.

Appeal site address 

If the appeal site does not have a postcode, please provide the postcode of the nearest building or provide a ‘what3words’ location for the appeal site and any information to help us identify the site. For example a map or plan showing the site.

Provide the requested detail on the appellant’s interest / involvement in the land. 

Grounds and facts

Tick each relevant ground of appeal and give facts in support of your case.  You can find advice on each ground in the ‘Reasons for appeal’ section above.

Procedure

The appeal can be considered on the basis of written representation, a hearing, an inquiry or combined proceedings. If you choose ground (d) and the appeal raises a dispute over a matter of fact, it is likely that an inquiry (with evidence under oath) will be necessary to test the evidence. 

The appointed Inspector will determine the choice of procedure after considering the exchange of written evidence. You can find further information in our guidance on the Choice of Procedure.

Costs

If any party has acted unreasonably and this has directly caused another party to incur unnecessary or wasted expense in the appeal or application process, you can submit an application for costs. Before you submit an application for costs, please read our guidance on costs.

Fees

There is no fee for appealing, unless you want planning permission granted (under a ground (a) appeal) or a lawful development certificate be issued. 

If you want us to consider your appeal under ground (a) you must pay the full fee to the LPA.

You can find further information on this in the section above, under Grounds of Appeal - ground (a) and the lawful development certificate section.

Other appeals / applications 

If you have sent other appeals for this or nearby sites to us, which have not been decided, please provide details on the appeal form. 

Check, confirm and date 

Please check your completed form carefully and then complete the declaration. We do not require a ‘wet signature’.

All evidence documents submitted with an appeal will be published on the Planning Casework Portal. You can find further information in our privacy notice. If you have any queries about our policy or wish to make a request for your personal data then please contact us.

Personal details 

Complete this section with the personal details for the appellant and agent (if applicable). We will not make the personal details supplied on this page publicly available.

Submit the appeal form and any supporting documents, with a copy of the enforcement notice and the plan that accompanied the notice. 

You must also send a copy of the completed appeal form and supporting documents to the LPA. 

Relevant legislation and guidance

• Further guidance on planning enforcement is in section 14 of the Welsh Government’s Development Management Manual. 
• Welsh Office Circular 24/97 Enforcing planning control: legislative provisions and procedural requirements. 
• Section 174 Town and Country Planning Act 1990 (as amended)
• The Town and Country Planning (General Permitted Development) Order 1995 (as amended)
• The Town and Country Planning (Use Classes) Order 1987 (as amended)