Appealing a refusal to approve details under a condition
Refusal of a discharge of conditions application carries a right of appeal under section 78. When to appeal, when to use deemed discharge and when section 73 is better.
A discharge of conditions refusal appeal is available, and most architects do not realise it. Section 78 of the Town and Country Planning Act 1990 gives a right of appeal against refusal of an application for any approval, consent or agreement required by a condition. It is not limited to refusals of planning permission. You have six months from the date on the decision notice, and the Planning Inspectorate will determine the point on its merits.
Whether an appeal is the right answer is a separate question. Three times out of four a resubmission with better evidence is faster.
What a discharge application actually decides
An application under Article 27 of the Development Management Procedure Order asks the authority to approve the details a condition reserved. Nothing more.
The permission already exists. The principle of development, the siting, the scale and the use are settled. The council is deciding one question: do the submitted details satisfy the purpose of the condition as drafted?
That narrowness cuts both ways. It means a council cannot use a drainage condition to revisit the design of the elevations. It also means you cannot use a discharge application to make a change the permission does not allow, which is where a surprising number of these refusals come from.
Read the condition's wording closely, and read it with the reason for the condition that sits underneath it. A condition requiring details of hard and soft landscaping to be approved, with a reason referring to the visual amenity of the conservation area, has a different scope from the identically worded condition whose reason refers to biodiversity.
The grounds councils use to refuse
Four recur, and they need different responses.
The details do not accord with the approved scheme. A material different from the one shown on the approved drawings, a level change, a window reveal depth that alters the elevation. This is a change to the permission dressed as a discharge, and the answer is an application under section 73 or section 96A rather than an appeal.
The information is insufficient. A landscaping schedule with no species, sizes or planting densities. A materials submission with a product name and no sample. This is the most common refusal reason and the easiest to cure.
A consultee objects on technical grounds. The lead local flood authority on infiltration rates, the highway authority on visibility, the contaminated land officer on a verification report. The response is more evidence of the right kind, and the consultee rather than the case officer is the audience.
The condition's purpose is not met on the submitted information. Harder, because this is a planning judgement, and it is the ground where an appeal has the most to offer.
The appeal route and the deadline
Appeals against refusal of approval of details are made to the Planning Inspectorate on the standard forms through the appeals service.
The deadline is six months from the date of the decision notice. The 12 week deadline applies to householder and minor commercial appeals against refusal of planning permission, so do not assume the shorter period applies here. Check the form carefully.
Written representations is the normal procedure, which suits these appeals because the dispute is usually documentary. The inspector will consider whether the details submitted satisfy the condition, applying the development plan and the reason for the condition. They cannot revisit the permission, and they will not entertain an argument that the condition should not have been imposed. That argument had its moment when the permission was granted.
Non determination is the other route. Where the authority fails to give notice of its decision within the prescribed period, generally eight weeks for an approval of details application, an appeal lies under section 78(2). In practice this is used less than it should be on sites where the programme is slipping. The published piece on appealing a prior approval refusal covers the related procedure where the refusal is of a prior approval rather than of reserved details.
Deemed discharge, and when it is available
Section 74A of the 1990 Act, inserted by the Infrastructure Act 2015, lets an applicant treat a condition as discharged where the authority has not determined the application.
The mechanism is a notice, not an appeal:
- Make the application for approval of details and pay the fee.
- Wait at least six weeks from the day the application was received, or from the day the fee was paid if later.
- Serve a deemed discharge notice on the authority, specifying a deemed discharge date at least 14 days after the notice.
- If the authority has still not determined the application by that date, the condition is treated as discharged.
The limits matter more than the mechanism. Schedule 6 to the Development Management Procedure Order lists descriptions of condition that are excluded, and the exclusions cover much of what actually delays sites: conditions on development subject to environmental impact assessment, conditions relating to habitats and protected species, contaminated land, flood risk and certain highways matters. Check that schedule before serving anything, because a notice served on an excluded condition achieves nothing and wastes the six weeks.
Deemed discharge also produces no approval document, which makes it awkward on a site that will be sold or refinanced. Lenders' solicitors want to see a decision notice. Where the condition is discharged by operation of section 74A, keep the application, the notice and the proof of service together, because that bundle is the only record.
Evidence that answers a technical objection
The pattern that works is to give the consultee the test result they would have asked for, rather than a narrative explaining why the result is unnecessary.
| Condition | What usually resolves the objection |
|---|---|
| Surface water drainage details | Infiltration testing to the recognised method at the proposed depth, with a design that works on the measured rate rather than an assumed one |
| Contamination verification | A verification report following the approach in BS 10175, with imported soil certification and a gas protection verification where relevant |
| Landscaping | A schedule naming species, root stock, girth or pot size, planting density and a five year maintenance specification |
| External materials | Physical samples delivered to the council, plus a sample panel built on site for brickwork and mortar |
| Noise from plant | A post installation commissioning test at the nearest receptor against the rating level in the condition |
For a drainage condition in particular, submitting a drainage strategy that models the proposal on measured ground conditions, with the exceedance route drawn, removes the standard objection before it is made. The whole list of supporting report types is a useful prompt for working out which technical document a given condition is really asking for.
Where the objection is a matter of judgement rather than data, appeal decisions on comparable conditions can help frame the argument, and the article on using appeal decisions in a planning application sets out how to deploy them without overstating their weight.
Where section 73 is the better route
If what you want approved differs from what was permitted, no amount of evidence will discharge the condition.
Section 73 allows an application to vary or remove a condition, and it produces a new permission with the condition in its amended form. Section 96A allows a non material amendment to the permission itself, which is quicker and costs less, and is limited to changes that are non material in substance. Neither reopens the principle of development, and the section 73 route has the advantage that a refusal carries its own right of appeal.
The decision tree is short. Does the detail accord with the approved drawings and description? If yes, discharge. If no, section 96A for something trivial, section 73 for anything else.
Starting work without the approval
The risk here is larger than a breach of condition.
Where a condition is a true condition precedent, requiring approval before development begins, works carried out without that approval have long been treated as not having been carried out under the permission at all. The practical consequence is that the permission may not have been implemented, and if the time limit for starting work has since expired, there may be no permission left to implement.
That is a question for a solicitor rather than an agent, and it is why the discipline on conditions precedent is absolute. Note also that section 100ZA of the 1990 Act requires the applicant's agreement to any condition that must be satisfied before development begins, so there is an opportunity at decision stage to object to a condition that will be unworkable on site.
Get the approval, or get written confirmation that the condition does not apply, before anyone breaks ground.
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.
Draft the technical submission behind a condition on PlanScope, then send it for professional review before it goes to the case officer.
Frequently asked questions
Can I appeal a refusal to discharge a planning condition?
Yes. Section 78 of the Town and Country Planning Act 1990 gives a right of appeal against refusal of an application for any approval, consent or agreement required by a condition. The deadline is six months from the date on the decision notice, and written representations is the usual procedure.
What is deemed discharge of a planning condition?
Section 74A of the 1990 Act lets an applicant serve a notice treating a condition as discharged where the authority has not determined the application. The notice cannot be served until at least six weeks after the application was received or the fee paid, and must specify a date at least 14 days later.
Which conditions are excluded from deemed discharge?
Schedule 6 to the Development Management Procedure Order 2015 lists the excluded descriptions, which cover much of what delays sites in practice: conditions on environmental impact assessment development, habitats and protected species, contaminated land, flood risk and certain highways matters. Check the schedule before serving any notice.
Why was my discharge application refused for details that match the approved drawings?
Check the reason for the condition as well as its wording. The reason defines the purpose the details must satisfy, so an identically worded landscaping condition can have a visual amenity purpose on one permission and a biodiversity purpose on another. Submissions are often refused for missing the stated purpose.
When should I use section 73 instead?
Whenever the detail you want approved differs from the approved drawings or description. A discharge application cannot authorise a change to the permission. Section 73 varies or removes the condition and produces a new permission, and section 96A handles amendments that are non material in substance to the permission itself.
What happens if I start work before a pre-commencement condition is discharged?
The risk is that the works are treated as not carried out under the permission at all, so the permission may never have been implemented. If the time limit for starting has since expired there may be no permission left. Take legal advice rather than proceeding on an assumption.
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.