Changing the description of development before appeal

The description of development on the application form defines what the council decided and therefore what an appeal is about. An appeal under section 78 of the Town and Country Planning Act 1990 is against the decision on the application as made, so where the authority altered the description before determination the description of development appeal problem arises: the decision may relate to a proposal the applicant never submitted, and the inspector has to work out what is properly before them.

Fix it before lodging if you can. The remedies afterwards are all worse.

Why the description fixes the appeal

The application is constituted by the form, the description, the plans and the supporting documents. Together they define the proposal the authority publicises, consults on and determines. An inspector determining an appeal is exercising the same power the authority had, on the same application, so the description sets the boundary of the inspector's jurisdiction.

That has two consequences people underestimate. A description that understates the scheme cannot be cured at appeal by pointing to the drawings, because third parties were consulted on the description as advertised. And a description that overstates the scheme invites the inspector to assess something more harmful than what you intend to build.

The drawings and the description have to agree. Where they conflict, expect the decision to turn on the conflict rather than on the planning merits.

Authorities amending descriptions at validation

Validation officers rewrite descriptions routinely, usually with good intentions. They standardise formats, add the word demolition where drawings show it, convert a use class reference into words, or split a mixed description into clauses.

None of that is unlawful where the applicant agrees to it. The difficulty is that the authority has no power to change the description unilaterally. The application is the applicant's, and an amendment imposed without consent produces a decision on a proposal that was not applied for.

In practice the change arrives in an email that reads as administrative. Treat it as a substantive decision point. Three questions answer it:

1. Does the new wording describe the same development as the drawings, with nothing added and nothing left out?
2. Does it change the use, the quantum, the extent of demolition or the degree of flexibility sought?
3. Would an objector reading the new description understand the proposal differently from the original?

If the answer to the first is yes and the other two are no, agree it in writing and move on. If not, say so in writing before validation completes, and propose wording you can live with. An email agreeing the description is also the document that protects you if the point is argued later.

Jurisdiction where the description changed

Where a decision notice carries a description the applicant never agreed to, an appeal creates a jurisdictional question. The inspector has to decide what the application was, and the answer comes from the application documents rather than from the decision notice.

The approach inspectors take draws on the long-standing principle that an amended proposal can be considered on appeal where the development remains in substance that which was applied for, and where no party has been deprived of the opportunity to comment on it. That test comes from case law on amendments at appeal and is applied as a matter of judgement, so treat reported outcomes as indicative of how inspectors have approached the issue rather than as a rule you can apply arithmetically.

Two outcomes are common where the gap is wide. The inspector determines the appeal on the application as originally submitted and records why, which is the better result. Or the inspector concludes that the appeal does not relate to a proposal properly before them, and the appeal fails without the merits being reached. The second outcome costs a year.

So deal with the point expressly rather than hoping it goes unnoticed. Set out in the appeal statement the description applied for, the description on the decision notice, how and when the change happened, whether you consented, and which description you invite the inspector to determine. Attach the application form and the validation correspondence.

Correcting an error before lodging

If the problem is caught before the appeal goes in, the cheapest route is almost always to ask the authority to reissue the decision notice with the agreed description. Authorities do this where the change was theirs and the error is obvious, because the alternative is defending an appeal on a jurisdictional point they will lose.

Ask in writing, set out the sequence, and give the officer the wording you want. Be realistic about what is a correction. Fixing a transcription error, restoring a clause the authority deleted, or reinstating the word demolition is a correction. Rewriting the description to describe a different scheme is not, and an authority that reissues a notice on that basis has made a new decision rather than corrected an old one.

Note the asymmetry. There is a statutory power to correct errors in appeal decisions issued by the Secretary of State or an inspector, with its own time limit, but no equivalent statutory power for a local authority decision notice. The authority's willingness to reissue is therefore a matter of persuasion rather than entitlement.

Appealing the decision as issued

Where the authority will not reissue, you appeal the decision as issued and address the description in the appeal. The practical steps are to lodge within the deadline, which is six months from the decision for most applications and twelve weeks for a householder or minor commercial appeal, and then to deal with the description in the first section of the statement rather than burying it.

Keep the two arguments separate. First, what is the application? Second, is the development acceptable? Mixing them produces a statement that reads as an attempt to improve the scheme through the appeal, which is exactly what inspectors refuse to allow.

The content of the planning case is unaffected by any of this, so the Planning Statement and the technical evidence that supported the application are the evidence that supports the appeal, updated for any policy change since the decision. Where the refusal also rested on substantive grounds, those are argued on their own terms, whether they concern highway safety and visibility splay evidence or anything else.

Where a fresh application is cleaner

Sometimes the answer is not to appeal at all. A fresh application with a correct description, submitted promptly, gets a determination in eight or thirteen weeks against an appeal timetable measured in months, and it removes the jurisdictional argument entirely.

The fee position helps. The national fees regulations provide an exemption from the fee for one further application for development of the same character or description on the same site, made by the same applicant within twelve months of the earlier decision, subject to the conditions in the regulations. Check the current regulations for the detail, because the exemption is narrower than the phrase free go suggests and the figures and conditions are revised.

Reapplying also lets you address the reasons for refusal rather than defending the scheme as refused. Where the refusal followed a committee decision against officer advice, a reapplication with a corrected description and a modest design change often reaches a different committee outcome faster than an appeal would.

The case for appealing instead is strongest where the authority's position is unsustainable and a costs award is in prospect, or where delay itself is the commercial problem.

Drafting descriptions that survive

A description that survives validation, consultation, decision and appeal does one job: it describes the development accurately and completely, with nothing else in it.

What belongs in it is the operation or the change of use, the quantum in numbers, the use class where a change of use is proposed, the extent of demolition, the access arrangements where they are part of the proposal, and for an outline application the matters reserved. What does not belong is any policy justification, any adjective, any reference to a planning history that is not part of the development, and any phrase doing concealed work. The words "and associated works" are the worst offender, because they are read narrowly against the applicant when something has been omitted and broadly against the applicant when an objector says the scheme was understated.

Four habits help. Count things and state the count. Keep the wording identical across the form, the drawings, the planning statement and any covering letter. For a section 73 application, identify the parent permission by reference and describe the variation rather than the whole scheme. And read the description back as an objector would, asking what it fails to disclose.

Where an appeal decision is eventually issued on a comparable description point, it is worth keeping, and there are better and worse ways of using appeal decisions in a planning application.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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