Appealing non-determination: when silence is the decision
The right to appeal for failure to determine is real and under-used. The arithmetic often favours waiting, but not always, and the decision is a programme decision.
A non determination appeal is an appeal made because the local planning authority has not decided your application within the statutory period. Section 78 of the Town and Country Planning Act 1990 gives the right, the period is eight weeks for most minor applications, 13 weeks for major development and 16 weeks where an environmental statement has been submitted, and the right arises once that period, or any agreed extension, has expired. The appeal has to be lodged within six months of the expiry.
It is a real option and it is exercised less often than the delay statistics would suggest, for reasons that are worth setting out honestly.
When the right arises
The clock starts on the date the application is validated, not the date it was submitted. Check the validation date on the council's register rather than your own diary.
An agreed extension of time replaces the statutory period. That is the trap. Where your agent has signed an extension to 30 November, no right of appeal exists until 30 November has passed, however unreasonable the delay before it felt.
Prior approval applications and other consent regimes have their own periods, and some of them carry deemed consent rather than an appeal right, so the position differs by application type.
Two practical points. The right survives even if the council issues a decision after you have appealed, because the Planning Inspectorate takes jurisdiction on receipt of a valid appeal. And the six-month deadline is not extendable.
Weighing an appeal against waiting
The arithmetic rarely favours appealing on delay alone.
An appeal on written representations takes months, and a hearing or inquiry takes longer. Where the council is three weeks past the eight-week date and the case officer is drafting a recommendation for approval, appealing converts a decision that is nearly there into a process that starts again in front of someone who has never seen the site.
Appealing makes sense in a narrower set of circumstances. Where the officer has indicated a refusal recommendation and further negotiation will not change it. Where the delay is caused by a committee cycle that will not reach the item for months. Where an option agreement or a funding condition has a date attached to it. Where the council has effectively stopped engaging and repeated requests for a timetable have gone unanswered.
It also changes the relationship. You will be back in front of the same authority on the next scheme, and appealing on non-determination is read as a hostile act by some officers and as a neutral programme decision by others. That is a judgement about the individual authority, and it is a real consideration rather than a squeamish one.
What the council can do after you appeal
Once the appeal is valid the authority loses the power to determine the application. What it does instead is produce a statement setting out the decision it would have made and the reasons it would have given.
That statement is the functional equivalent of a refusal notice, and it is the document your appeal has to answer. The difficulty is that you write your statement of case without having seen it, because both parties submit to a common timetable.
So the preparation problem is different from a refusal appeal. You are arguing against reasons you have to anticipate rather than reasons you have been given.
Anticipate them from what you do have. The consultee responses on the file. The objections. The officer's questions during the application. Any pre-application advice. Where a highway authority has objected and the objection has not been withdrawn, that objection will be in the council's statement, and your evidence needs to deal with it as if it were a refusal reason.
The authority can also negotiate after the appeal is lodged. Where amended plans would resolve the issue, the parties can agree them and the council can write to the Inspectorate confirming it no longer resists the appeal. That happens more often than people expect.
Councils sometimes report the item to committee anyway, so that members can resolve what the authority's position at appeal will be. Watch the committee agenda after lodging, because that report is usually the fullest statement of the council's case you will see before its formal statement arrives, and it is published weeks earlier.
Evidence you need ready on day one
The appeal form requires the full application documents, and the statement of case follows on a short timetable. Anything not ready at lodging will be produced under pressure.
- The complete submitted application pack, including every drawing revision and the validation correspondence
- All consultee responses received to date, and your responses to them
- A note of every extension of time requested and agreed, with dates
- The pre-application advice, if any, and the correspondence around it
- A Planning Statement covering the full policy case, since there is no officer report to respond to
- Any technical report that a consultee objection has put in issue
The planning statement carries more weight in a non-determination appeal than in an ordinary one, precisely because the inspector has no officer assessment to work from. Write it as the assessment nobody produced.
Where the scheme's difficulty is technical rather than policy-based, make sure the relevant supporting report is finished and submitted rather than promised.
Costs where the delay was unreasonable
An award of costs is available where a party has behaved unreasonably and caused another party to incur wasted expense. Delay alone is not automatically unreasonable behaviour, and the Planning Inspectorate looks at the reasons for it.
Awards have been made where an authority failed to determine an application without any adequate explanation, where it produced reasons at appeal that it had never raised with the applicant, or where it defended a position it then abandoned. Each of those is about conduct rather than timing.
If you intend to apply for costs, keep the record as you go. Dated correspondence chasing a decision, the timetable the officer gave and did not meet, and the point at which engagement stopped, are the material an application rests on. Assembling it retrospectively rarely works.
Making the timing decision
Take the decision as a programme decision rather than an emotional one.
- Confirm the validation date and whether an extension of time is in force.
- Ask the case officer, in writing, for a date by which the decision will issue and what remains outstanding.
- Establish whether the recommendation is likely to be approval or refusal.
- Compare the realistic appeal timescale, checking the Inspectorate's current published performance rather than a remembered figure, against the realistic remaining determination period.
- Test both against the dates that actually bind you, whether that is an option, a funding drawdown or a construction programme.
- Decide, and if you decide to wait, agree a written extension with a fixed end date rather than an open-ended one.
Step six is the one that protects you. An extension with a defined date preserves the appeal right at a known point, gives the officer a deadline and stops the application drifting.
PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. Enter your postcode on PlanScope to see which reports a site is likely to need.
Frequently asked questions
When can I appeal for non-determination?
Once the statutory determination period has expired without a decision, and no agreed extension is in force. The period is eight weeks for most minor applications, 13 weeks for major development and 16 weeks where an environmental statement has been submitted. It runs from the validation date, not the submission date, and the appeal must be lodged within six months of expiry.
Does an extension of time remove the right to appeal?
It defers it. An agreed extension replaces the statutory period, so no appeal right exists until the extended date has passed. This catches applicants out regularly. If you agree an extension, agree a fixed end date rather than an open-ended one, so the appeal right returns at a point you have diarised.
What does the council do once an appeal is lodged?
It loses the power to determine the application and instead produces a statement setting out the decision it would have made and the reasons it would have given. That statement functions like a refusal notice, but you write your own case before seeing it, so the reasons have to be anticipated from consultee responses and objections on the file.
Can costs be awarded against a council for delay?
Costs follow unreasonable behaviour rather than delay alone. Awards have been made where an authority failed to determine without adequate explanation, raised reasons at appeal it had never put to the applicant, or defended a position it later abandoned. Keep dated correspondence as you go, because assembling the record retrospectively rarely works.
Is it usually better to wait than to appeal?
Often, yes. An appeal takes months and restarts the assessment in front of someone who has never seen the site, so appealing three weeks after the deadline when an approval recommendation is nearly drafted rarely helps. Appealing makes sense where refusal is signalled, where a committee cycle is months away, or where a funding or option date binds you.
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.