Intentional unauthorised development: earlier refusal not enough

Intentional unauthorised development now carries an express national policy consequence, but a previous refusal does not automatically prove that later development was intentional in the sense required by the August 2026 National Planning Policy Framework.

An enforcement appeal at Town Farm Cottage, Kingston Blount is an early example of the new policy in practice. The Inspector compared what had actually been built with the earlier refused scheme and found important differences.

Appeal APP/Q3115/C/25/3374155 was allowed on ground (a) on 18th September 2026. The enforcement notice was quashed and planning permission was granted subject to conditions.

What South Oxfordshire enforced against

The notice concerned an access from Brook Street onto a classified road. The alleged works involved filling part of a drainage ditch, removing a section of hedgerow and installing a five-bar gate.

South Oxfordshire District Council required the gate and associated fencing to be removed, the ditch to be restored, disturbed land to be reseeded and the hedge to be reinstated.

The appeal was made on grounds (a) and (f). Ground (a) asks for planning permission for the matters stated in the notice. Ground (f) argues that the steps required by the notice are excessive. Once the Inspector allowed the appeal on ground (a), it was unnecessary to decide ground (f).

The earlier refused access was materially different

A 2019 application, P19/S2062/FUL, had proposed a new access and driveway. The council refused it and appeal APP/Q3115/W/19/3243590 was dismissed.

That scheme was not simply the access later found on the land. It included a driveway extending across the adjoining field or paddock and surfacing involving tarmac, gravel and granite setts. The Inspector dealing with the 2026 enforcement appeal found that the development before him did not include that driveway and did not have the same extent of hard surfacing.

The distinction mattered. An adverse planning history was relevant evidence, but it did not turn a materially different later development into the same proposal.

What NPPF DM8 says about intentional unauthorised development

The National Planning Policy Framework published on 17th August 2026 introduced Policy DM8 on unauthorised development and enforcement.

DM8 applies where retrospective planning permission is being considered, including through an enforcement appeal. If the decision-maker concludes, based on evidence, that the unauthorised development was intentional, that fact should be given substantial weight when deciding whether to grant permission.

That is national planning policy. It is not a statutory rule requiring every retrospective application or ground (a) appeal to be refused, and it does not say that development carried out after an earlier refusal is automatically intentional unauthorised development.

Why DM8 did not decide the Kingston Blount appeal

The council argued that the appellant knew planning permission was required, had already had an application refused and an appeal dismissed, and then carried out development anyway.

The Inspector accepted there was reason to think the appellant knew that planning control was engaged. He nevertheless found that the development actually carried out materially differed from the 2019 scheme.

He also took account of a later hedgerow-removal process. In 2020 the council had concluded that the relevant hedge was not an important hedgerow and did not issue a Hedgerow Retention Notice. The Inspector considered that history relevant when judging whether the later works had the degree of intentionality contemplated by DM8.

On the evidence as a whole, he was not persuaded that the unauthorised development should be treated as intentional for the purposes of the new policy.

Why the ground (a) appeal succeeded

Drainage and ecology concerns had been resolved or could be controlled. The council accepted that drainage information addressed one reason for the notice, and its ecology officer had raised no objection subject to mitigation planting and seeding.

The Inspector found the access provided adequate visibility and that the setback of the gate was satisfactory. On character and appearance, the grassed access before him was materially different from the more extensive driveway previously dismissed.

Planning permission was therefore granted. A condition requires an access surfacing scheme to be submitted within three months, with a mechanism and timetable for completing the approved works. Habitat planting must then be retained and maintained for five years.

The hedge-reinstatement element of the enforcement notice did not survive because of the separate hedgerow history.

The practical lesson from this intentional unauthorised development appeal

DM8 gives substantial weight to intentional unauthorised development only once intentionality has been established from evidence. A previous refusal can be important evidence, but the decision-maker still has to identify what was refused and compare it with what was actually carried out.

For owners and advisers dealing with retrospective permission, the planning history therefore needs to be analysed proposal by proposal. Similar location does not necessarily mean identical development.

For more on the appeal route, see our guide to the grounds of enforcement appeal. Planning Geek also has a separate comparison of the 2024 and August 2026 NPPF.

Appeal decision: APP/Q3115/C/25/3374155, Town Farm Cottage, Kingston Blount