How to complete your enforcement appeal form

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Transcript

Making your appeal
How to complete your
enforcement notice
appeal form
England
This guide shows you how to:
 Create an account
 Complete your form
 Submit your form
 Contact us
 Troubleshoot problems
December 2014
Contents
Click on the section you wish to view:
Contents ........................................................................................ 1
Before you start .............................................................................. 2
System Availability .................................................................................
System Requirements .............................................................................
Registration ...........................................................................................
Your account .........................................................................................
Making your appeal ................................................................................
2
2
2
2
3
Application for appeal costs .............................................................. 9
Selecting the correct appeal form ............................................................ 10
Completing the appeal form ............................................................. 11
Appellant Details ................................................................................... 11
Additional Appellants ............................................................................. 12
Agent Details ........................................................................................ 13
Local Planning Authority Details .............................................................. 14
Appeal Site Details ................................................................................ 15
Grounds and Facts ................................................................................ 17
Choice of Procedure ............................................................................... 23
Fee for the deemed planning application .................................................. 25
Other appeals ....................................................................................... 27
Supporting Documents........................................................................... 28
Submitting your appeal ................................................................... 29
Contacting us ................................................................................. 29
Troubleshooting ............................................................................. 30
How we use your personal information .............................................. 31
Annexe 1 ................................................................................................ 32
If you need this guidance displayed in a larger font or to have it
read out loud, please use the ‘zoom’ and ‘view’ toolbars in Adobe
Reader. You will need to have Adobe 6 or higher in order for this
to work.
This advice is important to you. Please read it immediately. You must
act quickly in deciding whether to appeal.
1
Before you start
Before you make your appeal, you should enter into discussions with the local
planning authority (LPA). We encourage you to continue these discussions,
during the appeal. This will help to narrow the areas in dispute.
You should make your appeal only when all else has failed.
System Availability
Our online facilities will usually be available 24 hours a day. We will sometimes
need to take the system out of service for a while to implement upgrades.
Wherever possible, we will do this outside of usual office hours.
System Requirements
Before you start, you should ensure that you have the following system
requirements 


Adobe Acrobat (Version 9 or higher recommended);
an internet browser (Internet Explorer/Chrome/Firefox recommended);
an email account.
Registration
You need to create an account with us in order to make an appeal or make
representations on an appeal. Registering will enable you to access our full
range of electronic services, including a personal homepage.
Please click https://acp.planningportal.gov.uk/account/register.aspx to access
the registration page.
If you are already registered with us and wish to log in, please click
https://acp.planningportal.gov.uk/
Your account
Personal homepage
From this page you are able to –

make a new appeal;
2





view your submitted appeal forms through ‘My cases’. These will not be
editable as they have already been submitted to us. You will have been
emailed a PDF version of any appeal form you have submitted;
search for a case using either the quick search facility (using the 7 digit
case reference number) or, alternatively, you can search using other
criteria (such as site address) with our advanced search;
access any of your appeals or representations which you are still working
on via the ‘Awaiting submissions’ facility. Please note that any appeals or
representations which are still awaiting submission after 180 days will be
automatically deleted;
view submitted representations through ‘My representations’. This will
include any representations you have submitted for your own case(s) and
any representations which you may have submitted for other cases which
you are interested in (for example, as an interested party). These will not
be editable as they have already been submitted to us. You will have
been emailed a PDF version of the form upon submission;
watch any cases which are of interest to you. Once you have found a
case which you want to follow, you can click the ‘Watch case’ button on
the Case Summary screen and the case will then be added to your
‘Watched cases’ list. If at any time you want to remove the case from
your list, simply click the ‘Stop watching’ button on the Case Summary
screen or click the red ‘x’ button on your homepage and the case will be
removed from your list.
My Details
This is where all the details you entered when creating your account are held. If
at any time your details change, you should make amendments to them through
this page, but please note you cannot change your name once your account has
been created. It is your responsibility to ensure that your details are kept up to
date.
If you make a change to your address details, telephone number or fax number
then these details will be updated instantly on your account. If you change your
email address, you will be sent an email confirming this change and asking you
to verify the new email address. Once verified, your account will be updated.
You can change your password using the ‘Change Password’ button. You will be
sent an email confirming that a change has been made. You will then need to
log into your account again, using your new password.
Making your appeal
Deadlines
We must receive your enforcement appeal before the date on which the notice
takes effect. This date should be shown on the enforcement notice and should be
at least 28 days from the date of issue of the enforcement notice which should
3
also be shown on the notice. You should not wait until the last few days.
A local planning authority has discretion on whether to issue an enforcement
notice. A local planning authority will issue an enforcement notice because it
considers that what is being done or has been done is a breach of planning
control because it is development that is not authorised by a planning
permission or is a breach of condition(s) attached to a planning permission.
Further guidance on the circumstances in which a local planning authority may
consider issuing an enforcement notice is in the Department for Communities
and Local Government’s planning practice guidance:
http://planningguidance.planningportal.gov.uk/blog/guidance/ensuringeffective-enforcement/planning-enforcement-overview/
Before you decide to appeal, please consider carefully the LPA’s reasons for
serving the enforcement notice on you. These are set out on the enforcement
notice.
Who can appeal?
An appeal may be made by:
(i) a person who has a legal interest in the land when the appeal is made
(irrespective of his/her standing when the notice was served); or
(ii) a relevant occupier in occupation of the land both when the notice was
served and when the appeal is made.
The terms “a person” and “a relevant occupier” includes a limited company or
unincorporated body. If this is the case the appeal must be made by the
company. A director or shareholder does not have the right of appeal on the
Company’s behalf. Or in the case of an unincorporated body, their authorised
representative.
Interest in this context has a special significance. It 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:
(a) on the date on which the enforcement notice is issued occupies the
land to which the notice relates by virtue of a licence (the consent
of the owner whether oral, written or implied); and
(b) continues so to occupy the land when the appeal is brought.
If you “have an interest” or are a “relevant occupier” you may appeal even if the
notice has not been served on you.
Sometimes, more than one person may have a legal interest in the land to which
an enforcement notice relates and their different interests may conflict with each
other. For example, the owner of the land may wish the enforcement notice to
be upheld, while the occupier of the land may wish to continue with the present
use and/or retain the works. In these circumstances, it is up to each person with
4
a legal interest to decide how his or her interests will best be served once an
enforcement notice has been issued.
If you own the land and you do not appeal against an enforcement notice but
someone else does appeal against it, in law you will have the status of an
‘interested person’. This does not entitle you to receive a copy of all the
representations made by the appellant and other interested people (though you
would be able to see such representations at the LPA’s offices).
However, in those circumstances, you may wish to request to be considered as
an ‘interested owner’. This status is given at our discretion. It means that we will
give you similar treatment as to an appellant. You will be able to attend any
hearing or local inquiry, or be present when the Inspector visits the site. You will
also be able to see and comment on any written representations made by the
appellant, the LPA, and any other interested people, during the progress of the
appeal. It is important you notify us to request this at the earliest opportunity.
A person


who does not have an interest in the land or is not a relevant occupier; or
who is a trespasser;
does not have a right of appeal – even if the local planning authority serves a
copy of the enforcement notice on them.
Lawful development certificates
Section 177(1) of the 1990 Act gives the Secretary of State certain
discretionary powers on the determination of an enforcement notice appeal
under section 174. Section 177(1)(c), enables him to determine whether, on
the date the appeal was made, any existing use of the land was lawful, any
operations which had been carried out were lawful, or any matter
constituting a failure to comply with a condition or limitation subject to which
planning permission was granted was lawful.
In exceptional circumstances the Inspector may issue a certificate of lawful use
or development (usually referred to as a lawful development certificate (LDC))
when determining your appeal. However, the LDC procedure is intended to be
administered primarily by LPAs. They are usually best placed to identify all
the relevant details about a use, operation or activity which may need to be
specified in an LDC. These details, including suitable plans to attach to the
certificate, may not be readily available to the Secretary of State or an
Inspector, even at the decision stage of an enforcement notice appeal.
Therefore, except very rarely, where an enforcement appeal succeeds on
grounds (c) or (d) in section 174(2), the notice will be quashed with no grant
of a LDC and the appellant advised that it is open to him or her to apply to
the LPA for an LDC under section 191.
5
In addition to the above, a fee is payable to the LPA for an LDC application. If
an LDC were, exceptionally, to be granted on your appeal, the “deemed
application fee” would not be refunded.
Openness and transparency
Hearings and inquiries are open to journalists and the wider public, as well as
interested people. Provided that it does not disrupt proceedings, anyone will be
allowed to report, record and film proceedings including the use of digital and
social media. Inspectors will advise people present at the start of the event that
the proceedings may be recorded and/or filmed, and that anyone using social
media during or after the end of the proceedings should do so responsibly.
If anyone wants to record or film the event on equipment larger than a smart
phone, tablet, compact camera, or similar, especially if that is likely to involve
moving around the venue to record or film from different angles, they should
contact us and the local planning authority in advance to discuss arrangements.
6
Guidelines for submitting documents
Acceptable
file
formats
File sizes
PDF
Microsoft Word
TIF
JPEG
ZIP
.pdf
.doc or .docx
.tif or .tiff
.jpg or .jpeg
.zip
Documents submitted may be no bigger than 5mb each. It is
your responsibility to keep your documents to a manageable
size.
If you have documents that are larger than this you can try the
following;






Break long documents into several files, but note the
document naming conventions below.
Try and use black and white wherever possible (unless
submitting photographs).
If submitting images, your software may have file/image
compression facilities to make them smaller.
Note scanned documents are usually bigger than nonscanned versions.
Provided you are using the acceptable file types above,
you can use ZIP files to compress documents.
If you have a large file and you are unable to use the
options listed, you can email anything up to 10mb to
[email protected]
Security
Remove any document security and enable macros if necessary.
Documents should not be password protected, they should not
be formatted as ‘read only’ and printing should be enabled.
Copyright
Ensure you have the owner’s permission and have paid any
copyright licence fee before sending in documents.
File names






Ensure all documents have descriptive names, including
the type of document you are sending, eg ‘Proposed plan
1 March 2014’.
Number appendices and submit them as separate
documents. Ensure the first page includes the appendix
number. Name them to indicate what they form part of,
and their sequence eg ‘Appeal statement Appendix 2
Traffic census.’
Use ‘Part 1’, ‘Part 2’ etc in the file name if you have split
up a large document eg ‘Appeal statement in Appendix 1
Environmental Assessment Part 1 of 3’.
Include the required paper size in the document name for
plans and drawings eg ‘Proposed plan A3 size 1 March
2014’.
Include scale bar(s) on all plans and drawings.
Do not use a colon ‘:’ in any file names.
7
Scanning
Ensure documents are complete and legible and avoid scanning
more than one document into a single file. Use black and white
unless colour is essential.
Ordnance
Survey
People may only scan an Ordnance Survey map if they;




Have an annual licence to make copies; or
Have purchased a bulk copy arrangement; or
Are using a local planning authority supplied map under
the ‘map return scheme’ (for which a fee is normally
payable at the local planning authority’s discretion), or
Have purchased the site-specific map from the Planning
Portal for the purposes of attaching to a planning
application, appeal or representation.
More information on map licensing is available on the Ordnance
Survey website:
http://www.ordnancesurvey.co.uk/support/licensing.html
Images
Hyperlinks
Send pictures, photographs, plans, maps or drawings as
individual files. Avoid the use of bitmap images as they are very
large.
 You should not use hyperlinks within documents you send
to us. Instead, you should download such documents
yourself and attach them separately.
 You should not use hyperlinks to a website page
containing multiple documents or links.
Formatting You should ensure that you number all pages accordingly.
Sending
emails
If you send anything by email you should get an automatic
acknowledgement, provided it is sent to
[email protected] or to a team email address (which can
be found at the top of letters from us about the appeal). If you
do not get an automatic acknowledgement, then you should
contact us.
For any correspondence which you send to us via email, you
should;



Quote the appeal reference and/or appellant’s name, site
address and local planning authority name in the subject
line or in the body of your email.
If you are attaching more than one document, please list
them in the covering email.
If you are sending a series of emails, include ‘1 of 5’, ‘2 of
5’ etc in the subject line of the email, so we know how
many to expect and can check with you if any appear to
be missing.
8
Application for appeal costs
You and the LPA normally have to meet your own appeal expenses, whether we
decide it by the written procedure, a hearing or an inquiry.
If a party does not behave reasonably they leave themselves open to costs being
awarded against them. This would be on the basis that the behaviour had
directly caused another party to incur expenses that would not otherwise have
been necessary.
Costs may be awarded in response to an application for costs by one of the
parties. Also the Inspector may make an award of costs even if neither to the
parties has made an application.
There is guidance about costs awards in the Department for Communities and
Local Government’s planning practice guidance at:
http://planningguidance.planningportal.gov.uk/blog/guidance/appeals/
It is important that you read this guidance because it explains how, and on what
basis you can make an application or have an application made against you.
The onus is on you to ensure that a properly substantiated claim for costs is
made at the appropriate time.
There is a model costs application form on the Planning Portal:
http://www.planningportal.gov.uk/uploads/pins/costs_application_form.pdf
9
Selecting the correct appeal form
Once you have logged into your account, start the appeal process by clicking on
the ‘Make a new appeal’ button.
Enter the name of your local planning authority
Here you should type in the name of your local planning authority. As you type,
possible matches will be returned. You can then select the correct one from the
list. Note you cannot change your local authority once you are in the appeal
form.
Selecting your appeal form
You will be asked a series of questions about your appeal, with each answer you
give determining the next question. You may need to consult the enforcement
notice issued from your LPA.
If you want to make an appeal in relation to more than one enforcement notice
or in relation to eg an application for planning permission, you must make a
separate appeal for each.
If you believe that you may have selected the wrong from, please select the
‘Restart’ button to begin the appeals process again.
Meaningful name
This name will be used to identify this appeal on your personal homepage.
Please use a name that clearly identifies the appeal to you, for example, the first
line of the site address. This is of particular importance if you are an agent who
may be dealing with multiple cases.
10
Completing the appeal form
In this guidance, we use the same section headers as within the enforcement
notice appeal form.
Appellant Details
Name
Preferred contact method
Please see earlier section ‘Who can appeal?’ to ensure that you are entitled to
appeal against the enforcement notice.
If you are an unrepresented appellant and you prefer to be contacted by email,
where possible, we will send you our letters and appeals correspondence by
email and we will not send paper copies.
If for any reason your details have changed since you created your account,
you should change them through the My Details link at the top of the page.
Back to Contents
Continue
11
Additional Appellants
If you intend to submit appeals against this enforcement notice by more than
one person at the same address, please include relevant details here.
Back to Contents
Previous
12
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Agent Details
You do not have to employ an agent to handle your enforcement appeal. If you
decide to employ an agent he or she will probably complete the appeal form for
you.
If you have an agent we will send all of our communications to them. We will
not send a copy to you. The only exception to this is that we will send you and
your agent a copy of the appeal decision. You should ensure that you keep in
touch with your agent about the appeal arrangements, particularly times and
dates for site visits, hearings or inquiries.
Preferred contact method
If you prefer to be contacted by email, where possible, we will send you our
letters and appeals correspondence by email and we will not send paper copies.
If you are the agent completing the form, by selecting ‘No’ to the question
‘Are you the appellant?’ the details registered to your account will be
displayed on the Agent Details section of the form.
Back to Contents
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Local Planning Authority Details
This information should all be on the enforcement notice.
The name of the LPA and relevant details of the enforcement notice will
have transferred through to the form from when you entered it at the start
of the process. If you need to change the LPA you will need to restart from
your homepage.
Back to Contents
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14
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Appeal Site Details
The appeal site must be the same as the site given in the enforcement notice.
If you confirm that the address of the affected land is the same as the
appellant’s address then this information will transfer over from the Appellant
Details section (provided you have completed the Appellant Details section
before the Appeal Site Details section).
Does the appeal relate to an existing property?
If the address of the affected building is not the same as the appellant’s address
you will be asked an additional question as to whether the appeal relates to an
existing property. If it does, you can use the address finder to complete your
details quickly.
Postcode
If the appeal site does not have a postcode, please provide the postcode of the
nearest building. Also please provide information to help us identify the site, eg
a map or plan showing the site and at least 2 named or numbered local roads.
Health and safety at the site
The site is likely to be inspected during the course of the appeal and the
Inspector needs to be made aware of any potential problems. The
following questions indicate the type of information we need about the
appeal site such as the condition of the land or any building to be
entered.
We take seriously our duties with regard to the health and safety of our
employees and those affected by our work. Inspectors may abort the site visit if
the conditions on site are unsatisfactory. Failure to provide the necessary
information may therefore result in a delay to your appeal.
The following questions indicate the type of information we need about the
appeal site, such as the condition of the land or any building to be entered.
Please note that the questions do not actually feature on the appeal form. The
information should be supplied within the free text field underneath the Health
and Safety question.
1)
Will the Inspector be expected to wear Personal Protection Equipment?
Please give details.
2)
Are any building works or other operations taking place on the site? If it
is a workplace, is there a risk assessment in place for visitors?
15
3)
Are there any animals (eg pets or livestock) within the site? If so, you
must ensure that ALL animals (both livestock or pets) will be kept away
from the area to be visited.
4)
Is the site remote or in an area likely to have a poor mobile phone signal?
5)
Are there any areas that require specialist equipment or training for
access e.g. confined spaces or use of ladders / scaffolding? If a ladder will
be used, you must explain why and give details of the heights involved
and arrangements for securing the ladder.
6)
Does the Inspector need to be aware of specific dangers within the site?
This would include uneven surfaces, equipment or substances kept at the
site, risk of exposure to chemicals, asbestos or radiation.
7)
Will it be necessary to view the site from a height, e.g. roof, balcony? Are
any railings or guards in place?
8)
Are there any site specific safety arrangements in place?
9)
Is the site accessible for persons with limited mobility?
10)
Is there any overgrown vegetation that could restrict access to the site?
If so, you will need to ensure that the site is made accessible to our
Inspector and any other people accompanying him or her.
You must also inform us of any relevant changes to the site which occur in the
period leading up to the planned site visit date.
Interest in the land
‘Interest in the land’ is explained in the earlier section ‘Who can appeal?’
Please state your interest in the building. If it is none of the above you will need
to indicate whether you/the appellant occupied the land/building under a written
or oral licence BOTH on the date the enforcement notice was issued AND on the
of making this appeal? . Use the text box to explain your interest.
Please see previous ‘Who can appeal?’ section for an explanation.
Back to Contents
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Grounds and Facts
Planning obligation
If you intend to rely on a planning obligation1 you should send a final draft
version with your appeal form. However, if you have not reached this stage you
should send in your latest draft. The “start letter” we will send you will tell you
when you must send the final draft to us. For further information please see
Annexe I of our “Procedural Guide: Enforcement – England – 6 March 2014”
http://www.planningportal.gov.uk/uploads/pins/procedural_guidance_enforceme
nt_appeals.pdf
Issues in contention and identifying of common ground
You should discuss your development with the LPA before you make your
appeal. You should agree what the key issues of contention are for the appeal.
This will enable both parties to identify and agree any common ground and focus
upon the key issues to be considered during the appeal process.
For inquiry cases you are required to send to us a statement of common
ground not later than 4 weeks before the inquiry. You should begin discussing
this with the LPA before you make your appeal. The statement of common
ground should include basic facts such as site description, area, planning history,
relevant planning policies, evidence on technical issues and conditions and all
other matters of agreement. You should also list the specific areas where
agreement is not possible.
For further information please see Annexe D, paragraph D.9 of our “Procedural
Guide: Enforcement appeals and certificate of lawful use or development appeals
– England – 6 March 2014”
http://www.planningportal.gov.uk/uploads/pins/procedural_guidance_enforceme
nt_appeals.pdf
The different grounds of appeal
There are 7 different grounds, in section 174(2) of the Act, on which you can
make your appeal. You may wish to appeal on one ground only or on several
grounds. The following is information about the different grounds and advice on
what to include in your grounds of appeal.
Your appeal must give facts in support of each chosen ground of appeal. You
should think carefully about the facts on which you will rely.
1
A planning obligation - often referred to as a 'section 106 agreement' – is either:

a legal agreement made between the LPA and a person 'interested in the land'; or

a legally binding undertaking signed unilaterally by a person 'interested in the land'.
17
Ground (a) - that planning permission should be granted for what is alleged in
the notice (or that the condition or limitation referred to in the enforcement
notice should be removed).
If you appeal on ground (a) you should set out in detail why you think that
planning permission should be granted.
If you want your appeal to be considered under ground (a) you must
pay a fee for the deemed planning application and you must plead
ground (a).
The LPA should have told you the fee that is payable when it served the
enforcement notice. If you only put ground (a) forward and you do not pay the
fee, your appeal will lapse. This means that your appeal will end.
You must pay the full fee for the deemed planning application to the LPA.
Further information about fees is given in the “Town and Country Planning (Fees
for Applications, Deemed Applications, Requests and Site Visits) (England)
Regulations 2012, Statutory Instrument No. 2012 2920”
Retrospective planning application
If you made a retrospective planning application after the LPA issued the
enforcement notice, the LPA may decline to determine your application under
section 70C of the Act (as amended). You cannot appeal against an LPA’s
decision to decline to determine your planning application. Therefore if the LPA
does decline any retrospective application the only way you could ask for the
planning merits of the alleged development to be considered is to appeal on
ground (a) on your enforcement appeal and pay the fee.
However if you (or anyone else) had already made a retrospective planning
application for the same development to the LPA and it issued the enforcement
notice before the time to decide the application had expired, no-one can appeal
against the enforcement notice on ground (a). The applicant for planning
permission can, in these circumstances, make a planning appeal if the LPA
refuse or fail to determine the planning application. This is specified at section
174 (2A)(b) of the Act (as amended).
Withdrawal of appeal and refund of the fee
If you withdraw your appeal so that there are at least 21 days between the
date we receive written notice from you that you want to withdraw the appeal
and the date of the site visit, hearing, or inquiry any fee you have paid will be
refunded by the LPA. If you withdraw your appeal later than this your fee will not
be refunded.
If you plead ground (a)
The Inspector will look at the planning merits of your development and so there
is no need to give a detailed history of discussions with LPA officers.
You should avoid repetition and information that does not relate to the issues
involved. The grounds of appeal should be clear and concise and we would not
expect them to exceed 3,000 words. 9
18
Do not repeat the LPA’s reasons for issuing the enforcement notice but you
should include a clear explanation of why you disagree with each of them. It is
not enough to say that you do not accept them.
The enforcement notice will refer to policies in the Development Plan and/or
supplementary planning documents in the Local Development Framework. Do
not describe any local policies in full. Simply give the number and the name of
the relevant development plan or supplementary planning document and give
paragraph numbers if appropriate. The LPA will provide these to the Inspector so
you do not need to. However, before making your appeal you should read the
policies referred to. You should include in your grounds of appeal why you think
that any policy referred to in the notice is not relevant or why the development
complies with it.
If you think there are other relevant policies, not referred to in the LPA’s
decision, but on which you intend to rely, you should attach the relevant
extracts and include them with your appeal, indicating their status, ie whether
they have been adopted by the LPA and/or have been saved by a direction of the
Secretary of State and form part of the Local Development Framework.
There is no need to set out national policy (such as the National Planning Policy
Framework) as Inspectors have access to these documents. However, you
should refer to any paragraphs by number that you think are relevant.
It will be helpful to attach previous decisions by the LPA or on appeal if they are
directly relevant but you should indicate why you consider them to be so.
You may include details of similar developments in the immediate area if you
think these are relevant to what you have done. You should identify them on a
street map and supply their addresses and, where possible, photographs of
them. Where you are aware of the history of any such development you should
set it out briefly in your grounds of appeal or in a separate annexe.
Where the effect on the neighbours is mentioned in the notice, if you dispute this
you should include measurements (in metric units) of the distances between
your and your neighbours’ properties, particularly the distances to any of their
windows. If your neighbours do not allow you access to their property you
should provide approximate measurements.
Planning conditions
You should indicate if you wish to accept or can suggest a planning condition(s)
that you think would mitigate the impact of the development if the appeal is
successful on ground (a).
You should look at:

the Department for Communities and Local Government’s planning
practice guidance on the use of planning conditions:
http://planningguidance.planningportal.gov.uk/blog/guidance/use-ofplanning-conditions/; and
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
Appendix A – “Suggested Models of Acceptable Conditions for Use in
Appropriate Circumstances” (which is still in existence) to Circular 11/95:
Use of conditions in planning permission (which has been cancelled); and

the list of model conditions on the Planning Portal:
http://www.planningportal.gov.uk/planning/planninginspectorate/inspecto
r/modelconditions.
The fact that conditions are suggested in relation to any ground (a)does not
mean that the appeal will be allowed on ground (a)and planning permission
granted or that, if allowed, conditions will be imposed.
The “legal grounds”
The following grounds (b), (c), (d) and (e) are often referred to as “the legal
grounds”. If you are pleading any of these grounds it is your responsibility to
provide evidence to prove what you are saying.
Ground (b) - That the breach of control alleged in the enforcement notice has
not occurred as a matter of fact.
If you plead ground (b) you are saying that whatever is alleged in the notice has
not taken place (ie 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 what
is alleged in the notice.
If you wish to argue that planning permission is not needed, do not do that
under ground (b). You should do that under ground (c).
Ground (c) - That there has not been a breach of planning control.
You may wish to claim that:
the operations alleged in the notice do not amount to development, under
section 55 of the Act, or that the change of use is not a material one (ie it
is not subject to the requirements of planning control);

the development that has taken place is permitted by the Town and
Country Planning (General Permitted Development) Order 1995 Statutory
Instrument 1995 No. 418 (as amended), or that the change of use is
within the terms of the Town and Country Planning (Use Classes) Order
1987 Statutory Instrument 1987 No. 764 (as amended);

what has been done, or built, is within the terms of a planning permission,
or that the relevant condition on a permission has been complied with.
Note - Sometimes there is confusion about ground (b) and ground (c). Put
simply, ground (b) is that you did not do it, and ground (c) is that you did, but
planning permission is not needed.
20
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.
The time limits are as follows:
section 171B(1) of the Act gives a time limit of 4 years for notices alleging
operational development such as building, mining or engineering works.

section 171B(2) gives a 4 year limit for change of use from a building/part
of a building to a single dwellinghouse. This time limit applies either where
the change to use as a single dwellinghouse involves development without
planning permission, or where it involves a failure to comply with a
condition or limitation subject to which planning permission has been
granted.

section 171B(3) states that any other change is subject to a limit of 10
years from the date of the breach. This applies to changes of use and to
breaches of any conditions attached to previous planning permissions.
It is not enough to say “The breach of planning control occurred more than
10 years ago”, or “The building was finished more than 4 years before the notice
was issued”. You need to be able to provide evidence to establish this.
Ground (e) – That the notice was not properly served on everyone with an
interest in the land.
You will need show that copies of the notice were not served as required by
section 172:
(2) A copy of the enforcement notice shall be served:(a) on the owner and on the occupier of the land to which it relates; and
(b) on any other person having an interest in the land, being an interest
which, in the opinion of the authority, is materially affected by the notice.
(3) The service of the notice shall take place:(a) not more than 28 days after its date of issue; and
(b) not less than 28 days before the date specified in it as the date which
it is to take effect.
Note - If the notice was not served as specified in section 172, this can be
disregarded if no substantial prejudice has been caused to anyone’s interests.
For example if the appellant or other person is present at the inquiry/hearing or
sent written representations it is likely that he or she has been given adequate
notice.
You should provide the details of anyone who has an interest in the land. You
should indicate who received the notice and who did not.
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Ground (f) - The Act says “that the steps required by the notice to be taken,
or the activities required by the notice to cease, exceed what is necessary to
remedy any breach of planning control which may be constituted by those
matters or, as the case may be, to remedy any injury to amenity which has been
caused by any such breach”;
This means that steps required to comply with the requirements of the
enforcement notice are excessive and lesser steps would overcome the
objections.
You should say why you think that the steps are excessive and 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) – 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, as it may be willing to extend the period for compliance,
removing the need for an appeal.
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Choice of Procedure
There are 3 possible procedures for the determination of an appeal:- written
representations, hearings and inquiries. We will decide which procedure your
appeal should follow and set the timetable. Our decision will be based on
published criteria which are set out in Annexe 1. We will also take into account
any views you have expressed about which procedure would be most suitable for
your case, and the views of the LPA. You should note that the procedure for your
appeal will be reviewed at the 2 week stage in the light of the LPA’s comments.
Your appeal may not necessarily follow your preferred procedure. Inspectors
give equal attention to every appeal regardless of the procedure.
Please refer to Annexe 1 before indicating which is your preferred
procedure.
The written representations procedure
This is normally the most straightforward way of making an appeal, it is simpler
to undertake than a hearing or inquiry. Over 60% of enforcement appeals
proceed by the written procedure. The Inspector will consider the LPA’s reasons
for issuing the enforcement notice, your grounds of appeal, any further
representations received from you and the LPA and any representation received
from interested people. The Inspector will usually visit the site.
You may wish to look at “The Town and Country Planning (Enforcement)
(Written Representations Procedure) (England) Regulations 2002, Statutory
Instrument 2002 No. 2683”.
We will use your responses to questions 1a) and 1b) to help us decide how the
site visit should be conducted.
The hearing procedure
This procedure is likely to be suited to more complicated cases which require
detailed discussion about the merits of a proposal (for an appeal on ground (a))
or where questions need to be asked to establish the facts. The hearing is an
inquisitorial process led by the Inspector who identifies the issues for discussion
based on the evidence received and any representations made. The hearing may
include a discussion at the site or the site may be visited, on an accompanied
(without any discussion), or unaccompanied basis.
If you ask for a hearing you should explain on the appeal form why you think
your appeal fits the criteria for a hearing. Although you may indicate a
preference for a hearing, we must also consider that your appeal is suitable for
this procedure. It will not be suitable if the evidence needs to be tested eg by
cross examination where the factual evidence about how long the development
has been on site is in dispute.
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You may wish to look at “The Town and Country Planning (Enforcement)
(Hearings Procedure) (England) Rules 2002, Statutory Instrument 2002 No.
2684”.
The inquiry procedure
This is the most formal of the appeal procedures. Although it is not a court of
law the proceedings will often seem to be quite similar. An inquiry provides for
the investigation into, and formal testing of, evidence, usually through expert
witnesses. Parties may be formally represented by advocates and evidence will
sometimes be given on oath. The site may be visited before, during or after the
inquiry.
If you ask for an inquiry you should explain on the appeal form why you think
your appeal fits the criteria for an inquiry. Although you may indicate a
preference for an inquiry, we must be satisfied that your appeal is suitable for
this procedure.
You may wish to look at “The Town and Country Planning (Enforcement)
(Determination by Inspectors) (Inquiries Procedure) (England) Rules 2002,
Statutory Instrument 2002 No. 2685”.
How long do you estimate the inquiry will last?
In answering question 3(a) you should say how long you estimate the inquiry
will last, including the time you think will be required to present all of your case.
Please be realistic - the estimate should include time for opening and closing the
inquiry, any sessions on conditions and any section 106 obligation and the time
you consider may be necessary for questions to be put to both your and the
LPA’s witnesses. If you have instructed someone to represent you at the inquiry
(your “advocate”) it may be useful for you to get their views on the likely length
of the inquiry.
We will take account of your estimate, the estimate we receive from the LPA and
our own experience when we set the likely length of the inquiry. Once set we will
expect the length of the inquiry to stay within the agreed timetable.
To help us to do this please indicate at Q3(b) how many witnesses you intend to
call to give evidence at the inquiry and the topic areas they will cover and any
other information which will help us decide on the appropriate timetable for the
inquiry. If you have an advocate it may be useful for you to get their views on
this.
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Fee for the deemed planning application
Q1 If you have applied for planning permission and paid the appropriate fee for
the same development as is in the enforcement notice you should provide the
date of that application, and the date of the LPA's decision if it has determined it.
You are exempt from the need to pay the fee for the deemed application
contained in ground (a) if:
i) the planning application was made before the date the enforcement
notice was issued and the application had not been decided by
that date; OR
ii) before the enforcement notice is to take effect you made an appeal
against the LPA’s refusal to grant planning permission and on the
date on which the enforcement notice is to take effect that appeal
had not been determined.
If i) applies please answer “Yes” at Q2.
If ii) applies please answer “Yes” at Q2 and write the reference of your current
planning appeal in the space provided.
Q2 Planning applications and enforcement appeals are exempt from the need to
pay a fee if they:

relate solely to:
(a) the carrying out of operations for the alteration or extension of an
existing dwellinghouse; or
(b) the carrying out of operations (other than the erection of a
dwellinghouse) in the curtilage of an existing dwellinghouse;
for the purpose, in either case, of providing means of access to or within
the dwellinghouse for a disabled person1 who is resident in, or is proposing
to take up residence in, that dwellinghouse, or of providing facilities
designed to secure his greater safety, health or comfort;
or

where the LPA to whom the application is made is satisfied that it relates
solely to the carrying out of operations for the purpose of providing means
of access for disabled persons to or within a building or premises to which
members of the public are admitted (whether on payment or otherwise);

the development, that is normally permitted, requires planning permission
because the permitted development rights have been withdrawn by a
or
25
direction made by the LPA under Article 4 of The Town and Country
Planning (General Permitted Development) Order 1995 (as amended);
or

the development, that is normally permitted, requires planning permission
because of a condition on a planning permission which restricts permitted
development;

the development is for another purpose, in the same Use Class as that for
which the building or land is used but permission is necessary because of
the requirements of a condition on the original planning permission.
or
If you feel one of these circumstances apply, please explain why and attach any
relevant documentation.
If you are not exempt from paying the fee you should send the full fee to the
LPA with the copy of the appeal form.
A “disabled person” is defined as(a) a person who is within any of the descriptions of persons to whom section 29 of
the National Assistance Act 1948 applies; or
(b) a child who is disabled for the purposes of Part III of the Children Act 1989.
1
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Other appeals
If you have made any other related appeals which have not yet been decided on
this site or for nearby sites please supply the reference numbers. Where
practical, and depending on the relevant timescales, we may consider related
cases together.
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Supporting Documents
Any supporting documentation other than a copy of the enforcement notice and
plan as required in this section of the appeal form should be kept to a minimum
and should be essential and directly relevant to the appeal. Such documentation
should be clearly cross-referenced to your representations on ground (a).
You may wish to send appendices to your representations. These can include
reports and information that relate directly to the reasons for issuing the
enforcement notice. Appendices should be used sparingly.
You may use photographs (preferably in colour) to illustrate your grounds of
appeal – for example to show the site and its relationship to its neighbours. If
you send photographs you must give details of where they were taken, on a
map showing the viewpoints, and when and what they show. If you take
photographs in public places please take reasonable care to respect the privacy
of individuals whose images you may inadvertently capture. We are unable to
return photographs.
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Submitting your appeal
You must read this section carefully and then check the box to confirm you have
read the content. If you have any queries regarding our Data Protection policy,
further information can be found on our website under Privacy Statement.
Please note that we must receive written notification of your appeal before the
date the notice comes into effect. So please make sure that you send your
appeal in good time before that date.
You should ensure that you send a copy of the completed appeal form
and a copy of any supporting documents you are sending to us and to
the LPA. If you choose to send us a copy of a proof of posting you should also
send a copy of that to the LPA.
Further instructions on how to send the documents to the LPA are
within the confirmation of appeal email which you will receive upon
successful submission of your appeal form.
Contacting us
The Planning Inspectorate
Customer Support Team
Room 3/13
Temple Quay House
2 The Square
Bristol
BS1 6PN
Telephone: 0303 444 5000
Fax: 0117 372 8782
Email: [email protected]
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Troubleshooting



Ensure that your internet browser has JavaScript enabled, which is usually
the default setting.
Ensure that cookies are allowed.
Ensure that the web address http://www.planningportal.gov.uk/ for the
Planning Portal is NOT added to the IE proxy server exceptions. Note –
This is normally only applicable to corporate networks.
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How we use your personal information
We receive personal information from the appellant, LPA and other interested
people who provide representations. The personal information normally includes
name and contact details and any other personal information included within
their representations.
We copy the representations we receive to the appellant and to the LPA.
Representations will also be open for inspection at the LPA where anyone can
ask to view them.
We publish summary details of the appeals that we process, which may include
the name and address of the appellant and agent, on the Planning Portal. We
also publish the Inspector’s decision. For further details please see our online
privacy statement:
www.planningportal.gov.uk/planning/appeals/online/about/privacystatement
If you have any queries about our use of your personal information please
contact our Data Manager at the address set out above in the paragraph called
“Contacting us”.
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Annexe 1
Criteria for determining the procedure for planning, enforcement,
advertisement and discontinuance notice appeals
The criteria for each procedure cannot be fully prescriptive or entirely
determinative: they require judgement to be applied using common
sense. More than one criterion may apply.
Written representations - written representations would be appropriate if:



the planning issues raised or, in an enforcement appeal, the
grounds of appeal, can be clearly understood from the appeal
documents and a site inspection (if required1); or
the issues are not complex and the Inspector is not likely to need to
test the evidence by questioning or to clarify any other matters; or
in an enforcement appeal the alleged breach, and the requirements
of the notice, are clear.
Hearing - a hearing would be appropriate if:






the Inspector is likely to need to test the evidence by questioning or
to clarify matters2; or
the status or personal circumstances of the appellant are at issue3;
or
there is no need for evidence to be tested through formal
questioning by an advocate or given on oath; or
the case has generated a level of local interest such as to warrant a
hearing4; or
it can reasonably be expected that the parties will be able to
present their own cases (supported by professional witnesses if
required) without the need for an advocate to represent them; or
in an enforcement appeal, the grounds of appeal, the alleged
breach, and the requirements of the notice, are relatively
straightforward.
Inquiry - an inquiry would be appropriate if:


there is a clearly explained need for the evidence to be tested
through formal questioning by an advocate5; or
the issues are complex6; or
1
A small number of appeals do not require a site visit and can be dealt with on the basis of the
appeal documents.
2
For example where detailed evidence on housing land supply needs to be tested by questioning.
3
For example whether in traveller appeals the definition in Annex 1 of DCLG’s planning policy for
traveller sites is met. or in agricultural dwelling appeals.
4
Where the proposal has generated significant local interest a hearing or inquiry may need to be
considered. In such circumstances the local planning authority should indicate which procedure it
considers would be most appropriate taking account of the number of people likely to attend and
participate at the event. We will take that advice into account in reaching the decision as to the
appropriate procedure.
5
This does not preclude an appellant representing themselves as an advocate.
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


the appeal has generated substantial local interest to warrant an
inquiry as opposed to dealing with the case by a hearing7; or
in an enforcement appeal, evidence needs to be given on oath8; or
in an enforcement appeal, the alleged breach, or the requirements
of the notice, are unusual and particularly contentious.
Note - It is considered that the prospect of legal submissions being made is not,
on its own, a reason why a case would need to be conducted by inquiry. Where
a party considers that legal submissions will be required (and are considered to
be complex such as to warrant being made orally), the Inspectorate requires
that the matters on which submissions will be made are fully explained –
including why they may require an inquiry - at the outset of the appeal or
otherwise at the earliest opportunity.
6
For example where large amounts of highly technical data are likely to be provided in evidence.
Where the proposal has generated significant local interest a hearing or inquiry may need to be
considered. In such circumstances the local planning authority should indicate which procedure it
considers would be most appropriate taking account of the number of people likely to attend and
participate at the event. We will take that advice into account in reaching the decision as to the
appropriate procedure.
8
For example where witnesses are giving factual evidence about how long the alleged
unauthorised use has been taking place.
7
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