Declining to determine a repeat application

A local planning authority can refuse to deal with your application at all. Section 70A of the Town and Country Planning Act 1990 gives it power to decline to determine a planning application that repeats a recently refused one, and section 70B gives a parallel power where a similar application is already under consideration. There is no right of appeal against either decision. The only route is judicial review.

That combination, a discretionary power with no appeal, makes this worth understanding before you press resubmit.

The power to decline a repeat application

Section 70A was substituted in its current form by the Planning and Compulsory Purchase Act 2004 and covers two situations.

The first is where, in the two years ending with the date the application is received, the Secretary of State has refused a similar application that was referred to them, or has dismissed an appeal against the refusal of a similar application or against non-determination of one.

The second is where, in the same two-year period, the authority itself has refused more than one similar application and there has been no appeal to the Secretary of State against any of those refusals.

Similar has a statutory meaning: in the authority's opinion, the development and the land to which the application relates are the same or substantially the same. Both limbs matter. A materially different scheme on the same land is not similar, and the same scheme on a different parcel is not either.

Section 70B covers overlapping applications. Where a similar application is already before the authority undetermined, or is the subject of an undetermined appeal, the authority may decline to determine the new one.

Conditions that must be met first

In each case there is a second condition: the authority must be of the opinion that there has been no significant change in the relevant considerations since the earlier refusal or dismissal.

That change test is where most arguments are won and lost. Relevant considerations are wider than the scheme itself, and the things that commonly amount to a change are:

• Adoption of a new local plan, or a plan reaching a stage where it carries weight.
• A new edition of the National Planning Policy Framework, or a written ministerial statement on the point at issue.
• A change in the authority's housing land supply position or its Housing Delivery Test result.
• A material change to the scheme that addresses a reason for refusal.
• A change in site circumstances: a neighbouring consent, a new access, the removal of a constraint.
• A relevant appeal decision elsewhere that changes how the policy issue is being approached.

The passage of time alone is not a change. Nor is a new supporting statement arguing the same case more forcefully.

Overlapping applications on the same site

Section 70B exists to stop an applicant occupying the authority's time with duplicate cases, and it is used most often against twin tracking.

The mechanics are worth knowing. Where two similar applications are live, the authority may decline the second at any point while the first is undetermined or under appeal. Where the first is determined, or the appeal is decided, the power under section 70B falls away and section 70A may then apply instead.

That produces a practical trap. An applicant who submits a duplicate, appeals the first for non-determination, and then finds the appeal dismissed can be inside the section 70A two-year window on the duplicate.

The way to avoid it is to make the second application substantively different in a way the authority can see. Not a redrawn site plan with the same building on it. A change to the element that was objected to.

How authorities exercise the discretion

The power is discretionary. An authority that can decline is not obliged to, and many prefer to determine and refuse, because a refusal generates a fee, a decision notice and an appealable outcome, whereas declining generates a complaint.

Where authorities do use it, three patterns recur. Sites with a long history of refused applications and no appeal. Applicants who resubmit within weeks of a dismissed appeal. And cases where the authority has told the applicant, in writing, what would need to change and nothing has.

There is no statutory procedure for exercising the power, so how the authority notifies you varies. Some write within days of receipt. Others take the full validation period. Ask the fee position at the same time, because practice on returning a fee for an application that is not determined is not uniform.

The decision and its date go onto the planning register alongside the site's other entries, which is covered in our note on the statutory planning register.

Twin tracking and its risks

Twin tracking means submitting two identical or near-identical applications so that one can be appealed against non-determination while the other stays under negotiation. It was common enough before 2004 that section 70B was written specifically to curb it.

It still has legitimate uses, mostly where real alternatives are being tested in parallel: a scheme of 40 units and a scheme of 25, or a full application alongside an outline. Those are not similar applications and section 70B does not reach them.

Where you are running parallel applications, say so in both covering letters and explain how they differ. An authority that discovers duplication for itself reacts differently from one that was told.

Challenging a decision to decline

There is no appeal to the Planning Inspectorate. Judicial review in the Planning Court is the remedy, on the usual public law grounds, within the short time limit that applies to planning challenges.

The realistic grounds are two. That the applications are not similar, because the development or the land differs materially. Or that the authority's view on the change test was one no reasonable authority could hold, which is a high bar but not an impossible one where a new local plan has been adopted in the interim.

Before going near a court, write to the authority setting out the changes and asking it to reconsider. Set them out as a table: the earlier refusal reason, what has changed, and the evidence. Most decisions to decline are reversed at this stage or not at all.

The other option is often better. Where an appeal was dismissed, the inspector's decision letter tells you exactly what the problem was. Answering it properly and waiting out part of the two years is usually faster than litigating.

Avoiding the problem at resubmission stage

Five things to do before resubmitting after a refusal or a dismissed appeal.

1. List the reasons for refusal or the inspector's conclusions, individually, and write next to each what the new scheme does about it.
2. Make at least one change that is visible on the drawings and goes to a reason for refusal. Height, footprint, unit numbers, access position.
3. Put the comparison in the covering letter and in the planning statement, so the authority can see the change test is satisfied without hunting for it.
4. Check whether anything external has moved: the development plan, national policy, the land supply position, a relevant appeal decision.
5. Take pre-application advice, and keep the written response. A pre-application note saying the revised approach addresses the earlier concerns is difficult for the same authority to square with a decision to decline.

Where the change is made during determination rather than at resubmission, different mechanics apply, and our note on re-consultation after amended plans covers those. Browse the full set of report types to check whether the revised scheme needs supporting documents the original did not.

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.