Appeals where the appellant is not the applicant

The right of appeal against a refusal belongs to the applicant, not to whoever owns the land. So when a site changes hands between the decision notice and the appeal deadline, the new owner cannot simply lodge an appeal in their own name and expect it to be valid. An appeal by a new owner has to be built on the original applicant's right, and the Planning Inspectorate will want to see how that right reached you.

This catches people regularly, and it catches them late. A buyer completes on a site with a refused application, assumes the appeal is an asset that came with the land, and discovers at week 24 of a 26 week deadline that the seller's cooperation is needed and the seller has stopped answering emails.

Who holds the right of appeal

Section 78 of the Town and Country Planning Act 1990 gives the right of appeal to the applicant where an application is refused or granted subject to conditions. The benefit of a planning permission runs with the land, and anyone can implement a permission once granted. The right to appeal a refusal is a different thing, and it attaches to the person who made the application.

That produces a practical split worth holding in mind:

• A granted permission is a property right that passes with the land
• A refused application leaves a personal right of appeal in the applicant's hands
• An application still undetermined can be transferred, but the transfer needs doing properly

In most cases the applicant is the owner or their agent and the question never arises. It arises on land sales, on corporate restructures, where a developer's option lapses, and where an agent applied in their own name rather than the client's.

Appealing after buying the site

Two routes work. The appeal can be lodged in the original applicant's name, with the new owner's agent acting and the new owner funding it. Or the Inspectorate can be asked to accept a change of appellant, supported by evidence of the transfer of interest.

The first is simpler and is what most practitioners do. It needs the applicant's written authority, and it needs them to stay cooperative for the length of the appeal, because the appellant is the party the Inspectorate corresponds with and who may be exposed to a costs application.

The second needs documentation and an early approach. Ask the Inspectorate what it requires at the point of lodging rather than halfway through, and expect to produce the sale documents and a written consent from the original applicant.

Either way, the deadline does not move. Six months from the date of the decision notice for most appeals, and twelve weeks for a householder appeal, and a late appeal is not accepted however good the reason.

Evidence of entitlement to appeal

Assemble this before you need it:

1. The decision notice, with the application reference and date
2. The original application form showing who the applicant was
3. Written authority from the original applicant to appeal in their name, or a consent to substitution
4. The transfer or contract showing the change of interest in the land
5. Any assignment of the benefit of the application, if one was executed
6. The full application file, including plans, reports and correspondence with the council

The last item is the one buyers forget. An appeal needs the submitted drawings, and reconstructing them from the council's website at low resolution is a poor substitute for the originals. Ask for the file at exchange.

Ownership certificates on the appeal form

The appeal form repeats the ownership certificate exercise from the application, and the certificate has to reflect the position as it now stands. Where ownership changed after the application was made, the certificate on the appeal needs to describe the current position, and notice has to have been given to anyone who is an owner and is not the appellant.

Certificate A applies where the appellant owns the whole of the application site. Certificate B applies where other owners exist and have been given notice. Certificates C and D cover cases where some or all owners cannot be identified after reasonable enquiry, with the newspaper notice that follows.

Get this right. A false or inaccurate certificate is a criminal offence, and an inaccurate one can taint the appeal even where the error was careless rather than deliberate.

Agricultural holdings notices

Where any part of the appeal site is agricultural land subject to a tenancy, notice has to be given to the agricultural tenant and the appeal form requires a declaration to that effect.

This is easy to miss on a part-sold farm where a grazing licence or a farm business tenancy covers a field in the red line. Check the tenancy position with the seller before lodging, and serve the notice in the prescribed form rather than by informal letter. Where a tenancy has ended since the application was made, say so and keep the evidence.

Where the original applicant objects

Occasionally the person whose right you need will not help. The reasons vary: a fallen-out partnership, a seller who feels aggrieved about the price, an agent who has not been paid.

Realistic options, in order:

• Negotiate. The cost of settling an unpaid fee is almost always less than the cost of the alternatives.
• Submit a fresh application in the new owner's name. The fee is payable again and the clock restarts, but the right of appeal is then unambiguously yours. On a refusal that will be repeated, this is often the cleanest route.
• Where the original application was made by an agent in their own name on your instructions, consider whether the agent held the right on your behalf and take legal advice on the position.

Illustrative example. A plot sold with a refused application for a single dwelling, three months before the appeal deadline. The seller's agent had applied in the agent's own name. The buyer negotiated a written authority for a modest fee, lodged the appeal in the agent's name, and funded it. The alternative was a fresh application and a further eight weeks, which would have missed the buyer's build programme. Figures are illustrative.

Practical steps on a transfer

Build the appeal position into the transaction rather than discovering it afterwards.

At heads of terms stage, ask who the applicant is and whether any appeal right exists. At contract stage, include an obligation on the seller to cooperate with any appeal, to provide the application file, and to give written authority for an appeal in their name on request. Where the application is undetermined, deal expressly with its transfer and with who controls the submission of amendments.

Then, once the site is yours, decide quickly. The appeal case takes time to prepare, and a Planning Statement that answers the reasons for refusal properly cannot be written in the last fortnight. Where the refusal was issued by a committee against an officer recommendation, the prospects analysis is different again, and the note on committee refusals against officer advice sets out how inspectors have approached those cases.

One honest uncertainty: practice on substituting an appellant varies and the Inspectorate's requirements are a matter for it, so confirm the current position directly rather than relying on what worked on a previous appeal. If you are a third party wanting to participate in someone else's appeal rather than to bring one, the position is governed by different rules, explained in the note on third party involvement in someone else's appeal.

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.