Appealing a refused discharge of conditions
A refusal of details is not a refusal of permission. Here is the section 78 appeal route, the deemed discharge alternative under section 74A, and the point at which a section 73 application is the faster answer.
A discharge of conditions appeal runs under section 78(1) of the Town and Country Planning Act 1990, and you have six months from the date on the decision notice to lodge it. That is the same right of appeal as a refused planning application, exercised against a refusal to approve details required by a condition rather than against the condition itself. The distinction matters because the two routes lead to different decisions, and picking the wrong one loses months.
Refusing details is not the same as refusing permission. The permission stands. What the council has said is that the drawings, survey or strategy you submitted do not satisfy what the condition asked for.
What a discharge application actually decides
An application for approval of details reserved by condition asks one narrow question: do the submitted details meet the requirement of that condition? Nothing more. The officer is not reopening the principle of development, reassessing the design or applying policies that were dealt with at the original decision.
That narrowness cuts both ways. It protects you from a second bite at the merits, and it means arguments about need, viability or the acceptability of the scheme carry no weight at this stage. The fee is set per request by the national fee regulations and is indexed annually, so check the current schedule rather than a figure quoted in an old file note.
The statutory period is eight weeks unless you agree an extension in writing. Miss that and you gain two options rather than one.
Why details get refused
Refusals of details cluster into four patterns, and knowing which one you are facing determines whether an appeal is worth lodging.
| Reason given | What it usually means | Best response |
|---|---|---|
| Insufficient information | The submission does not cover something the condition expressly required | Resubmit with the missing material |
| Details do not accord with the condition | The condition asked for X and you supplied Y | Appeal if the condition is capable of being read your way |
| Conflict with the approved plans | The detail changes something already fixed by the permission | Section 96A or section 73, not an appeal |
| Consultee objection | The highway authority or lead local flood authority has objected | Negotiate, then appeal on the substance |
The second row is the appeal case. Where a condition requires "a scheme for the protection of retained trees" and you have submitted a tree protection plan to BS 5837:2012 that the officer considers inadequate, an inspector is being asked to decide whether the scheme submitted is a scheme for that purpose. That is a question of judgement on which you can win.
The third row is the trap. If the details are actually a departure from the approved drawings, no amount of appealing the discharge refusal will help, because the council is right that the condition cannot approve something the permission does not allow.
The appeal route and the deadline
Appeals go to the Planning Inspectorate through the Appeals Casework Portal. Almost all are decided by written representations, which is the proportionate procedure for a document-based dispute, and the timetable follows the standard written representations sequence set out for written representations appeals.
Two deadlines matter. Six months from the decision notice for an appeal against refusal. For non-determination under section 78(2), the right arises once the eight week period (or any agreed extension) has passed without a decision, and the six month clock runs from the end of that period.
There is no appeal fee. There is a costs regime, and an authority that refuses details without a planning reason, or that fails to explain what would satisfy the condition, exposes itself to an application for costs on unreasonable behaviour grounds.
One practical warning. Appealing does not stop the clock on anything else, and an inspector who allows the appeal approves the details as submitted. If those details have moved on since you lodged, you will have approval for a superseded document.
Deemed discharge and where it applies
Section 74A of the 1990 Act, inserted by the Infrastructure Act 2015, lets an applicant treat certain conditions as discharged when the authority has not determined the application in time. You serve a deemed discharge notice. The notice cannot be served until at least six weeks after the authority received the application, and it must specify a deemed discharge date at least 14 days after the notice is given. If no decision arrives by that date, the condition is treated as discharged.
It is faster than an appeal and it costs nothing. But the exclusions are wide. Schedule 6 to the Town and Country Planning (Development Management Procedure) (England) Order 2015 lists condition types that are outside the route, including conditions attached to development subject to environmental impact assessment and conditions requiring an appropriate assessment under the Conservation of Habitats and Species Regulations 2017. Read the schedule before relying on it, because a deemed discharge notice served on an excluded condition achieves nothing and you may only discover that when a purchaser's solicitor asks.
Deemed discharge also produces no reasoned decision. Where you want a document you can show a funder or a buyer, an appeal decision is worth more than silence.
Evidence to submit with the appeal
Keep the appeal statement short and anchored to the condition wording. Quote the condition in full. Set out what was submitted, on what date, and how each element answers each limb of the requirement.
Include the correspondence. A case officer's email saying the tree protection plan looked acceptable, followed by a refusal on advice from a consultee, is material and inspectors read it. Quote any consultee response in full rather than paraphrasing it, because a partial quotation invites the inspector to ask what was left out.
Where the condition asks for a technical document, submit the document itself as an appendix, not a description of it. For schemes where a suite of documents was approved at the original decision, a short covering Planning Statement that maps each condition to the document discharging it saves the inspector an hour and saves you a request for further information.
Conditions precedent, commencement and lapse
This is the part that costs people their permission. A condition drafted as a true condition precedent has to be discharged before development starts. Start without it and a line of High Court and Court of Appeal authority, usually called the Whitley principle, treats the works as not amounting to lawful implementation of the permission.
The practical consequence bites when the permission is about to expire. If the three year period under section 91 runs out while you are appealing a refused discharge, and the works you carried out were in breach of a condition precedent, the permission may have lapsed rather than been implemented.
Two defences are worth knowing. Since section 100ZA of the 1990 Act came into force, an authority may not impose a condition requiring something to be done before development starts without the applicant's written agreement, which has reduced the number of true conditions precedent. And many conditions that look prohibitory are drafted so that only part of the development is restricted. Read the wording rather than the heading.
When section 73 is the better route
If the problem is the condition rather than the details, appeal the wrong thing and you lose twice. A section 73 application varies or removes a condition and produces a new permission with a new condition set. Use it where the condition is unreasonable, unnecessary or impossible to satisfy as drafted.
Use section 96A where the amendment to the approved drawings really is non-material. Use a fresh discharge application where the refusal was for missing information you can simply supply. And note that an inspector who allows an appeal against a refusal of details can also attach conditions of their own to the approval, which is a reason to be precise about what you are asking to be approved.
The same three-way choice applies to a refused prior approval, although the timescales are much tighter there, as set out in the guide to appealing a refused prior approval.
If you are rebuilding the evidence base before resubmitting, browse all 66 PlanScope report types and draft the document the condition actually asked for.
This is general guidance, not legal advice, so 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.
Frequently asked questions
Can you appeal a refusal to discharge a planning condition?
Yes. Section 78(1) of the Town and Country Planning Act 1990 gives a right of appeal against a refusal to approve any matter required by a condition. The appeal goes to the Planning Inspectorate, there is no fee, and the deadline is six months from the date on the decision notice. Written representations is the usual procedure.
What is deemed discharge of planning conditions?
Section 74A of the 1990 Act lets an applicant treat a condition as discharged where the authority has not determined the application in time. You serve a deemed discharge notice, which cannot be served until at least six weeks after the application was received and must give a date at least 14 days ahead. Many condition types are excluded.
How long does a council have to decide a discharge of conditions application?
Eight weeks from validation unless you agree a longer period in writing. Once that period passes without a decision you can appeal for non-determination under section 78(2), or in many cases serve a deemed discharge notice instead. The two routes are alternatives, and deemed discharge is faster where the condition is eligible.
Should I appeal the refusal or apply under section 73?
Appeal when the dispute is whether your submitted details satisfy the condition as drafted. Apply under section 73 when the condition itself is the problem, because that produces a new permission with amended conditions. Where the details depart from the approved drawings, neither route helps and you need a section 96A amendment or a fresh application.
What happens if I start work before a condition precedent is discharged?
Works carried out in breach of a true condition precedent may not count as lawful implementation of the permission. That matters most when the three year period under section 91 is running out, because the permission can lapse rather than being implemented. Read the condition wording carefully, since not every condition is drafted as a condition precedent.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.