Appeals where the council refused against officer advice

An appeal following a committee refusal against officer advice is a different animal from an ordinary section 78 appeal, and the difference is evidential rather than legal. The authority has to defend reasons its own professional adviser said were unsound. Sometimes it cannot, and says so. That is where the costs risk sits, and it is why the first thing to do after a committee vote is order the webcast and the minutes rather than the appeal forms.

Why these appeals sit differently

In a normal appeal the council's statement of case is written by the officer who recommended refusal, drawing on the committee report. Here the committee report argues the opposite of the decision notice.

The reasons for refusal are usually drafted after the vote, often by the planning manager or the monitoring officer, from what members said in debate. Debate is not evidence. A reason that records harm to character and appearance, with no reference to a plan policy and no analysis of the surrounding context, is a reason that will struggle.

So the inspector arrives with a committee report recommending approval, a decision notice refusing, and an authority whose witness may be the person who wrote the first document. Appeal prospects in that situation are discussed in our piece on committee refusals against officer advice. What follows is the procedural side.

Who presents the authority's case

There is no single practice and you should establish which applies early, because it shapes how you prepare.

Ask the question in writing when you lodge the appeal. The Inspectorate's case officer will not tell you, but councils often will, and the answer changes the procedure you request.

Where the authority declines to defend

A council is entitled to write to the Inspectorate saying it does not intend to contest the appeal, or to submit a statement that records the reasons for refusal without arguing them. Neither disposes of the appeal. The inspector must still determine it on the planning merits and may dismiss it even with no opposition.

Two consequences follow. The first is that your statement of case has to make the positive case properly rather than simply rebutting the council. The second is that interested parties who objected at committee frequently apply for Rule 6 status, and a well-organised residents' group can run a more focused case than the authority would have.

Third party involvement has its own procedural rules, covered in our guide to third party involvement in someone else's appeal. Where a Rule 6 party appears, the inquiry gets longer and the costs exposure for the authority does not disappear, because the unreasonable behaviour was the refusal.

Members giving evidence

A ward member or committee chair can appear. They may be cross-examined like any other witness, and they are not protected by the fact that they are elected.

Inspectors handle this with care and usually with courtesy. The probing is predictable: which policy in the adopted development plan does this concern engage, what evidence supports the assertion of harm, and what is the difference between this and the officer's assessment. Where the answer amounts to the strength of local feeling, the inspector will record that local opposition is not in itself a ground for refusal and give it no weight.

Avoid making the member the issue. An appellant who attacks the committee rather than the reasons for refusal invites the inspector to treat the appeal as a political argument, and that helps nobody.

Costs applications

The Planning Practice Guidance on appeals treats a refusal that cannot be substantiated as capable of being unreasonable behaviour. The grounds run in these cases are narrow and specific.

• Preventing or delaying development that should clearly be permitted, having regard to the development plan, national policy and any other material consideration.
• Failing to produce evidence to substantiate each reason for refusal.
• Relying on vague or generalised assertions about an impact, unsupported by objective analysis.
• Refusing on a ground that the authority's own professional advice said was not sustainable, without putting forward planning evidence of its own.
• Withdrawing a reason for refusal late, after the appellant has incurred the cost of answering it.

Procedure matters as much as merit. Make the application in writing, at the inquiry before it closes, or with your final comments on a written representations appeal, and set out the costs claimed by reference to the work that the unreasonable reason caused. A generalised claim for the whole appeal cost usually fails, because the inspector will separate the reasons that were defensible from the ones that were not.

Be realistic about the figure. Awards tend to track the wasted work rather than the full bill, and the application itself occasionally hardens an authority's position in future dealings with you. That is a judgement for the client, not the agent.

Evidence to assemble before you decide

Order all of this in the first fortnight, while the audio is still available and officers still remember the meeting.

1. The committee report, including the officer recommendation, the policy assessment and the planning balance.
2. Any update sheet or addendum circulated at the meeting, which often contains the late consultee response that changed the mood.
3. The webcast or audio recording, with a transcript of the material parts of the debate and the mover's stated reasons.
4. The minutes, and the resolution as recorded, which sometimes differs from the reasons on the decision notice.
5. The decision notice itself, checked against the resolution for reasons that appeared afterwards.
6. Consultee responses, particularly where a statutory consultee raised no objection on the very matter the refusal relies on.
7. Appeal decisions on comparable schemes in the area, used as indicative of how inspectors have approached the issue rather than as precedent, which our note on using appeal decisions in a planning application sets out.

Appeal or resubmit

The fee-free resubmission is the obvious alternative and it is right more often than appellants expect. It works where the refusal reasons can be answered by design change, where the committee's concern was narrow, or where the political position has shifted since the vote.

It is the wrong choice where the reasons disclose a difference of principle, because a second committee will reach the same view and you will have lost a year. It is also wrong where you want the costs point, which a resubmission abandons.

The middle path is a resubmission alongside the appeal, which keeps both routes live at the cost of two sets of fees and some officer irritation. Timing is the practical constraint, since the appeal must be lodged within six months of the decision notice.

Whichever route you take, the policy case has to be set out in full rather than assumed, and that belongs in a Planning Statement that answers each reason for refusal against the adopted plan. Enter your postcode on PlanScope to see which supporting documents the resubmission or appeal scheme is likely to need.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.