Appeals where the council changes its case

When a council changes its case on appeal, the appellant's job shifts from rebutting an argument to proving a positive case against nobody in particular. It happens most often after a committee refuses against an officer recommendation for approval: the reasons are drafted after the vote, the officers who wrote the supporting report now have to defend the opposite conclusion, and somewhere between the decision notice and the statement of case the council's position moves. Handled properly, that is an opportunity. Handled as a gloating exercise, it loses appeals that should be won.

Committee refusals against officer advice

Members are entitled to disagree with their officers. What follows is procedural rather than political.

Article 35 of the Development Management Procedure Order 2015 requires a refusal notice to state clearly and precisely the full reasons for the refusal, specifying the policies relied on. Reasons drafted in the minutes immediately after a vote, then tidied into a notice, often fail that standard in one of three ways: they assert harm without identifying the policy, they cite a policy the scheme does not engage, or they describe a concern that the officer report had already addressed with evidence.

Read the officer report, the published update sheet, the minutes and, where available, the webcast of the meeting. What was actually said in the chamber is frequently different from the reason as written, and the gap between them is where the appeal case starts. The first stage of the analysis is the same as for any refusal, as set out in our note on reading a refusal notice and turning it into a plan.

Who defends the reasons

In most authorities the case officer prepares the statement of case whatever their own recommendation was. That produces three recognisable patterns.

Occasionally a member gives evidence, and at an inquiry that member can be cross-examined. That is a decision for the council, and it tends to go badly where the evidence amounts to a statement of local feeling rather than planning analysis.

National guidance expects authorities to review their case before an appeal and to withdraw reasons they cannot substantiate. A council that does so promptly is behaving properly, and it is worth saying so in correspondence rather than treating the withdrawal as an admission of bad faith.

Withdrawn reasons and what they do not remove

Here is the trap for the overconfident appellant. A withdrawn reason does not disappear from the appeal.

The inspector determines the appeal on the planning merits and identifies the main issues themselves. Where a reason is withdrawn, the inspector may still treat the underlying matter as a main issue, particularly if interested parties press it, provided the parties have a fair opportunity to deal with it. At an inquiry, a third party admitted as a main party can argue the point the council has dropped. In written representations, objector letters carry the argument instead.

So the appeal statement should address the withdrawn matter anyway, briefly and with evidence. Two paragraphs confirming that the point was dealt with and remains answered costs you nothing and removes the risk that the inspector picks it up without hearing your case on it. Objector participation is covered in our note on what objectors can do once a planning appeal starts.

The evidence gaps that follow a late change

Where the council's position moves, specific gaps open up, and they are predictable.

• No expert evidence on a technical reason. A heritage or highway reason with no heritage or highways witness is a reason resting on assertion, and the inspector will say so if you demonstrate it.
• No consultee support. Where the highway authority raised no objection and the refusal is about highway safety, the council is arguing against its own statutory consultee.
• No policy anchor. A reason citing a general design policy, without identifying what the scheme does that the policy prohibits, cannot be tested.
• No alternative scheme. Where the council says the development is unacceptable but cannot describe what would be acceptable, the planning judgement has nothing to compare against.
• Inconsistency with the officer report. The council's own analysis, published and signed, contradicts its statement of case.

A highway safety reason without evidence is the most common of these, and the evidence that answers it is specific and measurable, as set out in our piece on highway safety refusals and the evidence that answers them.

Be careful not to overreach. An inspector is entitled to form their own planning judgement on matters such as character, scale and design without expert evidence from either side, because that is what inspectors do. The absence of a council witness does not win a design appeal. It only wins the issues that require technical proof.

Costs exposure for the authority

Appeal costs awards turn on unreasonable behaviour, and national guidance gives examples that map directly onto this situation: failing to produce evidence to substantiate a reason for refusal, relying on vague or generalised assertions about an effect, preventing development that should clearly have been permitted having regard to the development plan, and withdrawing a reason so late that the appellant has incurred wasted expenditure.

If you intend to apply, do three things early. Put the authority on notice in writing, with reasons, as soon as the deficiency is apparent, because an application for costs is stronger where the council had the chance to correct course. Keep a record of the work caused by the unsubstantiated reason, since a partial award is more common than a full one. And make the application at the right procedural moment for the appeal type.

Do not threaten costs as a negotiating tactic in every appeal. Inspectors see it, councils stop reading it, and it devalues the application when you have a real one.

Using the officer report as evidence

The officer report is a public document and the council's own written assessment of the proposal. It is admissible, it is persuasive, and it is often the best evidence in the appeal.

Use it precisely rather than wholesale. Quote the specific passages where the officer found no harm on the issue now relied on, append the full report so the inspector can see the context, and include the consultee responses it summarises. Where the report recommended conditions, offer those conditions in the appeal, which demonstrates that the harm the committee feared was already capable of control.

One caution. A committee is not bound by its officers, and an inspector will not treat the officer recommendation as determinative. The report is evidence of analysis, not a decision, and an appeal statement that relies on it as though it were a ruling reads as weak.

Preparing for a reason nobody defends

The practical approach, in the order I would work through it:

1. Write the case to the policy and the evidence, as if you were making the application for the first time, rather than only answering the reasons.
2. Deal with every withdrawn reason briefly, so no issue reaches the inspector unanswered.
3. Anticipate the objector case, which is usually where the dropped reason resurfaces, and address it on its merits.
4. Choose the procedure deliberately. An inquiry allows cross-examination of whoever stands behind a reason, which is powerful where the evidence is thin, but it costs more and the appellant carries most of that cost.
5. Offer a statement of common ground, which forces the council to commit to what it does and does not dispute.
6. Put conditions on the table, drafted, so the inspector has a route to allowing the appeal with controls.
7. Decide on costs on the evidence rather than on irritation.

The documents that carry this analysis are the appeal statement and, for the underlying case, the Planning Statement submitted with the application. Agents preparing these regularly can see the Professional tier terms on the pricing page.

A final observation from reading a lot of these decisions: appeals against unsupported committee refusals are usually won on the quality of the appellant's positive case rather than on the council's embarrassment. Build the case you would have built anyway, then note the gaps without relishing them.

This is general guidance, not legal advice, and appeal procedure and costs practice turn on the facts of each case, so take advice from a qualified professional before relying on it.