Appealing non-determination, and whether to wait

The right to appeal non determination planning applications arises the moment the statutory period expires without a decision notice, and most of the time you should not use it. A deemed refusal appeal hands the case to an inspector with no officer report, no committee resolution and no articulated reasons for refusal, which means you argue against a case the authority has not yet made. That is a poor trade unless the delay is itself the damage.

The decision is a three-way one: appeal, agree an extension, or withdraw and come back. Each has a different cost, a different timescale and a different effect on your relationship with the case officer who will handle everything else you submit in that borough.

When the right arises

Article 34 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 sets the periods: eight weeks for most applications, 13 weeks for major development, and 16 weeks where the application is accompanied by an environmental statement. The clock runs from the day after the application was validated, not from the day it was submitted.

Once the period expires, section 78 of the Town and Country Planning Act 1990 gives a right of appeal against the failure to give notice of a decision. The appeal must reach the Planning Inspectorate within six months of the date the period expired. Householder appeals against a refusal run to a shorter 12-week limit, so check the route that applies to your application type before assuming you have half a year.

A written extension of time changes the position completely. Where the authority and the applicant have agreed a longer period in writing, the right to appeal does not arise until that agreed date passes. Inspectors will reject an appeal lodged inside a live extension, and the fee and the six weeks spent preparing the statement of case are gone.

What you give up by appealing early

An appeal against non-determination is decided on the same policy and the same evidence as any other appeal. What differs is the shape of the argument.

Without a decision notice you have no reasons for refusal to answer. The authority files a statement setting out the reasons it would have refused, and it is free to include matters no officer had ever raised with you. Consultee responses that were still outstanding on the day you appealed will arrive during the appeal and become part of the case. You lose the chance to amend the scheme in response, because an inspector determines the application as submitted and has limited room to accept substantial changes. Amendments made before a decision trigger re-consultation on the revised plans, which is slower but keeps the application alive in the authority's hands.

You also lose the officer. A case officer who was three weeks from recommending approval subject to a section 106 agreement stops working on your file the moment the appeal is lodged, and the authority's planning solicitor takes over. That is the most common regret, and it is avoidable by asking one direct question before you appeal.

The question to ask first

Ask the case officer, in writing, for a recommendation in principle and a list of outstanding matters with dates. Most officers will answer honestly. The answer sorts the situation into one of three states.

The third row is the one the non-determination appeal exists for. Where an authority has simply stopped responding, a deemed refusal appeal moves the decision to somebody who is obliged to determine it.

The fee refund where determination is late

The planning guarantee requires the application fee to be refunded where the authority has not determined the application within the guarantee period. It was introduced at 26 weeks, and the December 2023 fee changes shortened the period for non-major applications and removed the guarantee for development subject to environmental impact assessment. These figures have moved more than once, so verify the current position in the fees regulations rather than working from memory.

Two practical points. The refund is of the fee, not of your consultants' costs, so it rarely changes the commercial arithmetic on a scheme of any size. And agreeing an extension of time can switch the guarantee off, which is a reason to agree a short, dated extension rather than an open-ended one.

Consultee positions still outstanding

Statutory consultees are the usual reason a determination period expires. The lead local flood authority, the highway authority, Natural England on nutrient neutrality, the Environment Agency on flood risk, and the county archaeologist all have their own backlogs.

Appealing while a consultation is outstanding transfers the problem rather than solving it. The consultee responds to the inspector instead of to the council, often later, and the appeal timetable does not wait for it. Where the missing response is the only obstacle, chase the consultee directly, copy the case officer, and offer the authority a dated extension that expires two weeks after the consultee's own target date. Where the missing response will be hostile, you are better off seeing it and answering it in an updated Planning Statement than meeting it for the first time in an appeal statement.

Judging whether the authority will actually refuse

The tell is not the officer's tone. It is the paper trail.

Start with the statutory planning register, which has to record the application and its documents. Then look at whether a site notice was posted and neighbours consulted, whether the application appears on a committee agenda or a delegated list, whether the officer has requested amendments or additional documents, and whether a draft heads of terms for a section 106 agreement has been circulated. A request for a unilateral undertaking is a strong sign of an approval in preparation. A holding objection from a consultee with no officer attempt to resolve it points the other way. Check the authority's published committee cycle too, because a scheme that has to reach committee can miss a determination date purely because of the meeting calendar, and that is a scheduling problem rather than a refusal in disguise.

Where a scheme was always going to be refused on a point of principle, such as a departure from an allocation or a Green Belt objection with no arguable case, the non-determination appeal has a real attraction. You skip a refusal, save a resubmission, and get to an inspector months earlier.

Choosing between appeal, extension and withdrawal

Withdrawal deserves more attention than it gets. The fees regulations allow one further application for the same development on the same site by the same applicant, free of fee, within a year, which keeps the cost of a withdraw-and-resubmit route low where the problem is a fixable design point. You keep the officer, you keep the ability to amend, and you restart the clock with a scheme that answers the objection.

Appeal where delay is the harm: an option expiring, a funding condition, a grant deadline, a tenant walking away. Extend where an approval is visibly close. Withdraw where the scheme needs to change.

One honest uncertainty: appeal timescales vary by procedure and by the Inspectorate's workload at the time, so nobody can tell you reliably in advance whether written representations will be quicker than waiting another eight weeks for a committee date. Ask the Inspectorate what its current indicative timescales are before you treat speed as the reason to appeal, and record every unanswered email in the meantime, because unreasonable behaviour is what a costs application has to be built on.

Draft the supporting documents for a resubmission or an appeal on PlanScope and send them for professional review before they go in. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.