Appealing against non-determination: gains and losses

An appeal against non determination is available once the statutory period for deciding your application has expired without a decision, and lodging it takes the application out of the council's hands permanently. That is the gain and the loss in the same sentence. The council can no longer grant permission, no matter how close it was, and the Planning Inspectorate decides the scheme as submitted against reasons the council has not yet written down.

For a developer holding a major application that has drifted past 13 weeks with no committee date, the question is rarely whether the right exists. It is whether using it improves the position.

When the right arises

Section 78 of the Town and Country Planning Act 1990 gives a right of appeal where the local planning authority has not given notice of its decision within the prescribed period. That period is eight weeks for most applications, 13 weeks for major development and 16 weeks where the development is subject to environmental impact assessment, unless a longer period has been agreed in writing.

The agreed extension is the part that matters. Once you have signed an extension of time, the clock runs to the new date and there is no appeal right until that date passes. Councils ask for extensions routinely, often by email late in the period, and signing one without thinking about it surrenders the option.

The appeal itself must be lodged within six months of the expiry of the relevant period. Waiting longer than that loses the right, and the only remaining course is to press for a decision or withdraw and reapply.

What the council loses the moment you appeal

Jurisdiction transfers. Once a valid appeal against non determination is made, the authority cannot issue a decision on the application, and any decision it purports to make afterwards has no effect.

That cuts both ways and the downside is underrated. If the case officer had a recommendation for approval sitting with a committee report three weeks away, appealing throws away a permission that was coming. Before lodging, ask the officer directly where the application stands and what remains outstanding. Most will tell you, and an officer who says the report is drafted and the recommendation is positive has given you the answer.

The upside is that a council which has stalled because it cannot reach a view, or because a consultee has gone quiet, no longer controls the timetable. Where delay is being used as a negotiating position on a section 106 obligation, removing the council's power to decide changes the balance immediately.

Running a case with no decision notice

A refusal appeal starts from a document that lists exactly what is wrong with the scheme. A non determination appeal starts from silence.

You have to build the case on what you can infer: the consultee responses on the file, the officer's questions during the application, the objections received and the policies most likely to be engaged. That means covering more ground than a refusal appeal would need, and it means the Planning Statement and the technical evidence have to anticipate objections that may never materialise.

Get the file before you appeal. Request the consultation responses and any internal consultee comments, and read the objections carefully. A drainage consultee holding out for an infiltration test, or a highway authority that has never responded at all, tells you where the case is going.

Putative reasons and how they appear

The council is asked to state the reasons it would have refused the application had it been in a position to determine it. These are the putative reasons for refusal, and in most authorities they are resolved by committee or under delegated authority specifically for the appeal.

They arrive after the appeal has started, which is the awkward part of the sequence, and they can be broader than anything raised during the application. A council that never mentioned heritage during 14 weeks of determination can produce a heritage reason once the appeal is on, and you then answer it inside the appeal timetable.

Occasionally the opposite happens. A council resolves that it would have granted permission and offers no putative reasons at all, in which case the appeal proceeds largely unopposed on the main issues, with third party objections still to be dealt with. That outcome is rare enough not to plan around, but it does occur where the delay was administrative rather than substantive.

Where the case involves technical ground likely to be disputed, agreeing a statement of common ground with the council narrows the argument regardless of how the reasons are framed.

The section 106 problem

This is where non determination appeals get expensive.

An Inspector cannot grant permission for a scheme that needs planning obligations unless the obligations are in place. On a refusal appeal the heads of terms are usually settled, because the council negotiated them before refusing. On a non determination appeal they often are not, and the council you now face across an appeal has little incentive to complete an agreement quickly.

The usual answer is a unilateral undertaking, executed by the applicant and any other party with an interest in the land, offering the obligations the appellant says are necessary. It works, but it puts you in the position of deciding what the council would have asked for, and an Inspector may find a unilateral undertaking inadequate if it misses an obligation the evidence shows is needed.

Practical points that save the appeal:

• Start the undertaking early, because getting a mortgagee to execute it takes weeks.
• Offer obligations that meet the statutory tests, and explain against each one why it is necessary, directly related and fairly related in scale and kind.
• Include a mechanism for contributions the council might quantify differently, rather than a single fixed figure.
• Keep talking to the council's legal team even while the appeal runs.

Programme, and whether appealing is actually faster

The instinct is that appealing speeds things up. It often does not.

Written representations appeals take months. Hearings take longer. Inquiries on major schemes can run the better part of a year from lodging to decision once the case management and evidence stages are counted. Against that, a council that is three weeks from a committee date may deliver a permission far sooner than any appeal.

The honest comparison is not appeal against doing nothing. It is appeal against the realistic date on which this council, with this officer, on this application, will actually decide. Where that date is unknowable because the authority will not commit to one, the appeal is worth it. Where the officer gives you a committee date and the recommendation is positive, it is not.

There is a costs dimension too. An authority that has failed to determine without good reason exposes itself to an application for an award of costs, and that prospect concentrates minds. The reverse also applies: an appellant who appeals prematurely, then seeks adjournments or produces amended plans, invites a costs application against them. The same discipline applies to evidence as in any other appeal, as a flood risk sequential test at appeal illustrates.

When an extension of time is the better deal

Agreeing an extension is not weakness. It is often the commercially sensible choice.

It keeps the council able to grant permission, preserves the working relationship with the case officer, allows amendments to be negotiated in a way an appeal does not, and lets outstanding consultee responses arrive. On a scheme where the remaining issues are soluble, it is nearly always quicker than an appeal.

Agree it on terms. Set a specific date rather than an open ended period, put in writing what the council will do before that date, and make clear that you will not extend again without a committee date. An extension agreed three times in succession is a council managing its performance statistics, not a route to a decision.

And be aware that agreeing an extension affects the fee refund position under the planning guarantee, which runs on a different timetable from the appeal right.

If you are preparing or refreshing the supporting documents before deciding, browse the 66 PlanScope report types and start a draft.

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.