Appealing non-determination instead of waiting

The right to appeal against non-determination opens the day after the statutory period expires, and a surprising number of applicants never use it. Under section 78 of the Town and Country Planning Act 1990 you may appeal where the local planning authority has not given notice of its decision within the period prescribed by the Development Management Procedure Order, or within any longer period agreed in writing.

The prescribed periods are eight weeks for most minor applications, thirteen weeks for major development and sixteen weeks where an environmental statement accompanies the application. An extension of time agreed by email counts, which is why the first thing to check is what your agent agreed to and when.

Whether to use the right is a commercial decision, not a legal one, and it usually comes down to whether the council is slow or hostile. Those need different responses.

When the right arises and how long it lasts

The clock starts on validation, not on submission, and a council that sat on an invalid application for three weeks has not started the period at all. Get the validation date confirmed in writing.

Once the period expires the appeal right is open, and it stays open for a limited window that runs from the expiry of that period. Householder appeals run to a much shorter deadline than other appeals, so check the current timescales on the Planning Inspectorate's appeal guidance rather than assuming six months.

One thing the right does not do is punish the council for lateness. There is a separate mechanism, the planning guarantee, under which the application fee is refunded where a decision has not been issued within twenty six weeks. That refund is worth having and is not connected to the appeal.

What you give up by appealing early

Lodging the appeal transfers the decision to the Planning Inspectorate, and the council loses the power to determine the application. Everything that would have happened in the remaining weeks stops.

That means you lose the ability to amend the scheme in response to officer comments. An inspector can consider minor changes where no prejudice arises, following the approach in the Wheatcroft case, but the scope is narrow and an appeal is not the place to redesign. You are asking for a decision on the drawings as submitted.

You also lose the negotiated section 106 agreement. A unilateral undertaking can be submitted with the appeal, but drafting one without the council's input is guesswork, and an inspector faced with an undertaking that does not cover the obligations the authority says are needed will usually dismiss.

And you lose the officer relationship. That matters more on a site you will come back to.

What the council does next

Once an appeal is lodged the authority has to produce a statement of the decision it would have made and the reasons for it. That document is often the most useful thing to come out of the process, because it forces an authority that has been silent for four months to write down its actual objections.

Two outcomes follow from that. Sometimes the putative reasons are thin, the case is straightforward, and the appeal proceeds to a decision the applicant would never have obtained from the council. Sometimes the reasons reveal a consultee objection the applicant did not know about, at which point the appeal has cost time and the underlying problem is still there.

The authority can also confirm that it would have granted permission. That does not end the appeal, but it makes the outcome close to certain and it is a useful signal that the delay was resourcing rather than merit.

Costs risk on both sides

Costs in planning appeals are awarded for unreasonable behaviour, on application by a party, under the national costs guidance. Both directions are live here.

A council that failed to determine an application without good reason, or that produces putative reasons it cannot substantiate with evidence, is exposed. Vague reasons unsupported by any technical objection are the classic example, and the guidance is explicit that authorities should have evidence for the reasons they advance.

The appellant is exposed too, and the exposure is easy to overlook. Appealing while material information is outstanding, then supplying it during the appeal, or appealing on a scheme that plainly conflicts with the development plan, both invite a costs application. Non-determination appeals are also more likely than most to be criticised where the applicant refused a reasonable extension of time and then appealed the following week.

The safe position is to have your evidence complete before you lodge. If you would not be ready for the appeal on the day you submit it, you are not ready.

Using the threat rather than the appeal

In practice the threat resolves more cases than the appeal does. A short letter noting that the determination period expired on a given date, that the appeal right is now open, that you would prefer a decision from the council, and asking for a committee date or a delegated decision within a stated period, changes the priority of your file.

Do it politely and in writing to the case officer and the team leader. Set a real deadline and be prepared to act on it, because an empty threat repeated three times achieves nothing.

Where the council responds by asking for an extension of time, take it if the officer will commit to a date and a recommendation. Take it more cautiously if the request is open ended.

Deciding on the evidence

Work through five questions before lodging.

1. Is the application actually complete, with every consultee satisfied or capable of being satisfied on the submitted information?
2. Do I know what the objections are, and can I meet them on the drawings as they stand?
3. Is there a section 106 requirement, and can I draft a unilateral undertaking that will satisfy an inspector?
4. What is the cost of six more months against the cost of running the appeal?
5. Will I need this council again on this site or a neighbouring one?

If the answers point to appeal, prepare the case as you would for a refusal. A Planning Statement that sets out the development plan policies and the material considerations in full does most of the work, and the appeal statement builds on it. Where the delay is caused by a technical consultee, resolving the underlying report is usually faster than an appeal, and the full list of report types is a reasonable place to identify what is missing.

Where the answers point to waiting, put the pressure on anyway. Time limits concentrate attention, and the council knows the clock has run out even if you have not said so.

One honest caveat. Non-determination appeals decided on written representations still take months, and on a contentious scheme an inquiry takes considerably longer than that, so the appeal is rarely the fast route. It is the certain one.

If the gap in the submission is a missing technical document rather than a policy dispute, close it before the deadline passes. You can enter a postcode on PlanScope to see which reports the site is likely to need and draft the narrative documents while the clock runs.

This is general guidance rather than 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.