Section 289 enforcement appeal challenges

A Section 289 challenge asks the High Court to examine a point of law arising from an enforcement appeal decision. The original appellant, the council and certain people with an interest in the land can use this route. Winning before the Inspector does not prevent the council from applying to the court.

The normal deadline is 28 days after notice of the decision is given to the applicant. Permission is required, and the permission application must be served on the required people before it is filed with the court.

There is an important exception: a grant of planning permission under section 177(1)(a), or discharge of a condition or limitation under section 177(1)(b), falls within section 288. Read the High Court planning challenges overview if you are unsure of the route. This guide covers England.

What does Section 289 cover?

Section 289 of the Town and Country Planning Act 1990 provides a court appeal on a point of law following specified notice appeals. This guide concentrates on enforcement notices under Part VII. The section also covers other specified notices, including tree replacement notices under section 207 and completion notices under section 93I, which need their own route-specific advice.

A point of law concerns a legal error in the decision or the process used to reach it. Examples include applying the wrong legal test, misunderstanding permitted development legislation, procedural unfairness or failing to give legally adequate reasons.

The court does not rehear whether the extension looks acceptable or whether the Inspector should have preferred one witness. Factual and planning judgements generally belong to the Inspector unless the challenge identifies a recognised legal error.

Who can challenge an enforcement appeal decision?

For an enforcement notice, section 289(1) allows the original appellant, the local planning authority or any other person having an interest in the land to challenge. A legal interest, such as ownership or a relevant tenancy, is different from simply being interested in development nearby.

A neighbour who objected is not automatically entitled to use Section 289. The Planning Inspectorate’s guidance recognises that other aggrieved people may seek judicial review in appropriate cases. The route and standing need specialist advice, particularly where statutory restrictions apply.

A council cannot use Section 289 merely because it dislikes losing. It must identify an arguable point of law and obtain the court’s permission. The same requirement applies to an unsuccessful enforcement appellant.

The Section 289 deadline and permission application

Paragraph 6.1 of Practice Direction 54D requires the permission application within 28 days after notice of the decision is given to the applicant. These are calendar days, not working days. Preserve the decision email or envelope as well as the decision letter and ask a solicitor to calculate the deadline.

Permission to appeal, also called leave, means the court allows the legal challenge to proceed. It is not planning permission and does not mean the challenge has succeeded. Section 289(6) requires leave of the High Court.

The application must explain why permission should be granted. It is filed in the Administrative Court Office with the decision, a draft appellant’s notice and supporting witness evidence. The appellant’s notice is the document setting out the proposed court appeal. Evidence must also identify who was served, where and when, and explain any failure to serve someone who ought to receive it.

Can time be extended?

Yes, an extension can be requested. Paragraph 6.2 requires a late application to include an application to extend time and reasons for missing the deadline. An extension is discretionary, not an entitlement. Do not let negotiations, a complaint or hopes of a concession use up the normal 28 days.

This differs from the statutory six-week period for bringing a section 288 claim. Treat the normal Section 289 deadline as urgent even though the court has an extension power.

How will I know if the council challenges my enforcement appeal decision?

You should normally receive the application documents directly, or through a representative properly authorised to accept service. You should not normally have to keep searching court hearing lists to discover whether the council has applied.

Paragraph 6.3 requires the person applying to serve the permission application, draft appellant’s notice and supporting witness statement or affidavit before filing the application. In plain English, the required parties must be formally given the papers first.

For a Section 289 enforcement challenge, paragraph 6.11 identifies:

• The Secretary of State
• The council that served the notice, or, where the council brings the challenge, the appellant or applicant in the proceedings before the Inspector
• Any other person having an interest in the land to which the notice relates

If you won the enforcement appeal and the council brings the challenge, you are therefore normally one of the people who must be served. Do not assume that sending documents to your former planning consultant is necessarily valid service. Your solicitor should check the recipient, authority to accept service and method used.

If 28 days have passed and you have received nothing, that is reassuring but not conclusive. Time might be extended, service may be disputed, or an application may disclose a failure to serve a required person. Paragraph 6.9 allows the court to adjourn to enable service on someone who should have been served.

Hearing lists only show listed hearings, not every newly lodged application. If you want additional confirmation, ask the council whether it has applied or intends to seek an extension, and ask your solicitor to check with the Administrative Court. The Planning Inspectorate’s High Court Team may also be able to confirm whether it has been notified of a challenge.

The Inspectorate’s enforcement appeals procedural guide lists [email protected]. Quote the appeal reference and decision date. The team is not the court, cannot extend the deadline and does not provide independent legal advice.

What happens after permission?

The permission application is normally heard by a single judge, not less than 21 days after filing unless the court orders otherwise. Anyone served is entitled to appear and be heard. If permission is granted, paragraph 6.10 normally requires the appellant’s notice to be served and filed within seven days of the grant. The court may give further directions and impose terms about costs or security.

Where the decision is erroneous in law, paragraph 6.14 says the court will not set aside or vary that decision but will remit the matter to the Secretary of State for rehearing and determination in accordance with its opinion. This procedural distinction matters: the judge is not substituting a fresh planning decision. The Inspectorate may reach the same result after addressing the legal error.

Does the enforcement notice remain suspended?

A timely enforcement appeal suspends the notice under section 175(4). The courts have treated the appeal as not finally determined while Section 289 proceedings are on foot. The usual position is therefore that the notice remains suspended during those proceedings and any resulting redetermination.

That is subject to the court’s powers. Under section 289(4A), the High Court or Court of Appeal can order that the notice has effect, wholly or to a specified extent, pending the final outcome. The court can impose terms, including an undertaking as to damages from the council.

A threat to challenge, or an intention to lodge a late application, is not something on which to assume suspension. Get advice about the actual proceedings, any orders and the compliance timetable. Stop notices and breach of condition notices raise separate issues; paragraph 6.15 permits court directions concerning those powers.

The Section 177 overlap: one letter, different routes

Not every court challenge arising from an enforcement appeal has a 28-day deadline. The result being challenged is what matters:

• A challenge to an enforcement appeal decision on a point of law ordinarily uses Section 289
• A decision granting planning permission under section 177(1)(a), commonly following success on ground (a), falls within section 288
• A decision discharging a condition or limitation under section 177(1)(b) also falls within section 288

Section 284(3)(e) expressly identifies the latter two decisions. Their section 288 challenge period is six weeks beginning with the day after the relevant decision. A single letter may contain more than one legal outcome, and proceedings may need to address more than one route.

If the Inspector quashes a notice because the alleged works did not breach planning control, that normally points towards Section 289. If the Inspector grants permission for the development, identify the section 288 element. Do not infer the court route from the words “appeal allowed” alone.

Onward appeals and costs

An onward appeal to the Court of Appeal also needs permission under section 289(6). In Dharmeshkumar v Secretary of State [2026] EWCA Civ 247, the Court of Appeal confirmed that the ordinary CPR 52.6 test applies, rather than the stricter second-appeal test. Permission may be given by the High Court or Court of Appeal where there is a real prospect of success or another compelling reason for the appeal to be heard.

Court proceedings expose parties to legal fees and possible adverse costs orders. Ask about the likely total bill, insurance and whether Aarhus environmental costs protection applies. Do not assume that winning the planning appeal removes the cost of defending a council’s legal challenge.

What should I do now?

1. Keep the complete appeal decision, notice, appeal documents and evidence of when the decision was sent
2. Ask a specialist planning solicitor to identify the route and deadline immediately
3. If papers arrive, record when and how they were received and obtain advice promptly
4. Check the notice’s status and any court order before making decisions about compliance or further works

Planning Geek can help with the planning background, permitted development issues and evidence. We are a planning consultancy, not a law firm, and do not provide High Court legal representation. This guide is general information, not a substitute for specialist legal advice.

Primary legislation: section 289, section 175 and section 284.

Other Planning Appeal Sections

Section 289 Page Created: 1st October 2026