Appealing an Enforcement Notice
If you have received an Enforcement Notice, one of the first questions you will have is whether to appeal it.
In most cases, the answer is yes.
An Enforcement Notice is a formal legal document requiring you to remedy an alleged breach of planning control, often within a relatively short period of time. This might mean demolishing an extension, altering a building, or ceasing a particular use. If you do not appeal within the time period set out in the Notice (usually 28 days), it will take effect and you will be required to comply with it.
Once a Notice takes effect, your position becomes much more difficult. If the period for compliance then expires, failure to comply becomes a criminal offence. A surprisingly large number of people ignore enforcement notices, sometimes because they are unsure what to do, or in the hope that the matter will go away. It will not.
For that reason alone, it is usually worth appealing.
What does appealing actually do?
Appealing an enforcement notice does two important things.
First, it allows the case to be considered properly by an independent inspector. Appeals are determined by the Planning Inspectorate, not the local council. This means that the decision is taken by someone who is not involved in the original enforcement action.
Second, and just as importantly, lodging an appeal normally suspends the effect of the Notice. In practical terms, this means that you are not required to comply with the Notice while the appeal is being decided. Given that enforcement appeals often take many months to determine, this can be significant.
Are Enforcement Notices always correct?
Not necessarily.
Councils serve enforcement notices where they believe there has been a breach of planning control and that it is expedient to act. However, planning is a complicated system and building work is rarely straightforward.
It is surprisingly easy to fall foul of the rules. Small changes are often made during construction, permitted development rights are misunderstood, and planning conditions are overlooked. Many people obtain planning permission, instruct a builder and act in good faith, only to find themselves facing enforcement action.
In other cases, the issue is not what has been built, but how it is described in the notice. Enforcement Notices must be drafted carefully, and the wording matters. It is not uncommon for notices to require more than is necessary to remedy the breach, or to describe the breach inaccurately.
These are all matters that can be explored through an appeal. We win hundreds of cases each year where we have shown that the Notice was invalid because it was not worded properly and had other legal flaws.
In some cases we are able to persuade the council to withdraw the Notice.
What can you argue on appeal?
There are a number of different grounds on which an enforcement appeal can be made.
You may argue that planning permission should be granted for the development as built. You may contend that the breach alleged in the notice has not occurred, or that what has occurred does not amount to a breach of planning control. You may argue that the notice has been served too late, that its requirements are excessive, or that the time allowed for compliance is too short.
In some cases, it may also be possible to show that the development has become lawful through the passage of time.
Which of these arguments are available will depend on the facts of the case. Enforcement appeals are often won on detail.
When might you not appeal?
There are some situations where an appeal may not be the right approach.
If the breach is clear, the development is unlikely to be acceptable in planning terms, and the steps required by the Notice are reasonable, it may be more sensible to comply or to seek to resolve matters in another way.
However, even in those cases, it is usually worth taking advice before deciding not to appeal. Once the Notice takes effect, your options are limited.
A practical point
You normally have 28 days from the date the Notice is served to lodge an appeal. This deadline is strict.
If you are unsure what to do, the safest course is often to submit an appeal within that period while you consider your position. Missing the deadline removes that option entirely.
Getting advice
Planning enforcement is a specialist area. It sits somewhere between planning merits, factual evidence and legal procedure. A good outcome often depends on understanding exactly what the notice alleges, what has actually happened on site, and which arguments are available.
We regularly advise homeowners and developers on enforcement notices and appeals. If you have received a notice and are unsure what to do next, feel free to get in touch.
