Duplicate applications and the twin track approach

Twin tracking means lodging an appeal against a refusal and submitting a revised application for the same site at roughly the same time, so that a negotiated permission and an appeal decision are both live. It is a legitimate tactic and it has one substantial obstacle: section 70B of the Town and Country Planning Act 1990 lets a local planning authority decline to determine an application that is similar to one already under consideration or subject to an undetermined appeal.

So the practical question is not whether you are allowed to twin track. It is whether the second application is different enough that the council cannot use section 70B, and whether the difference is worth having.

What twin tracking means

Two tracks, run deliberately in parallel.

The appeal preserves the original scheme and the original refusal reasons, with a decision from an inspector at the end of it. The revised application offers the council a chance to grant permission for something modified, usually addressing one or two of the refusal reasons, while keeping the appeal as the fallback if negotiation fails.

The tactic is most useful in three situations. Where the refusal turned on one issue that a modest design change can answer. Where a new officer or a changed policy position makes a fresh look worthwhile. And where the applicant needs a permission on a commercial timetable that a six month appeal cannot meet.

It is least useful where the refusal is about principle. Two applications for a scheme the council objects to in principle produce two refusals and a longer wait.

Fee consequences and the free go entitlement

Regulation 9 of the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 provides the exemption most people call the free go. Broadly, no fee is payable for one further application by the same applicant, for development of the same character or description, on the same site, made within twelve months of the refusal of the earlier application or within twelve months of its withdrawal.

Four points to get right.

1. It is one exemption, not a standing entitlement. Use it on the wrong application and it is gone.
2. The development has to be of the same character or description. A substantially different scheme is a new application with a full fee.
3. The earlier application must itself have attracted a fee, so you cannot chain exemptions.
4. The regulation contains further limits, and authorities interpret the detail differently, particularly where applications overlap or where an appeal is on foot.

Given that fourth point, ask the council's technical support team in writing whether they accept the exemption applies before you submit, and keep the reply. The fee is what validation turns on, and an application submitted with no fee that the council considers chargeable will sit invalid while the clock runs.

Where the earlier application was withdrawn rather than refused, our note on withdrawing an application before refusal sets out how that affects the position.

Running an appeal and a revised application together

Sequence matters. Lodge the appeal first, or at least make sure the appeal is lodged within time, because the appeal deadline is fixed and the application is not. The window is six months from the date of the decision notice for most applications, and twelve weeks for householder and minor commercial appeals under the expedited procedures.

Then submit the revised application with a covering letter that does three things. It explains what has changed and which refusal reason each change addresses. It confirms that an appeal has been lodged on the earlier scheme and says why the applicant considers the new application to be materially different. And it invites the officer to a meeting.

Keep the two documents consistent. An appeal statement arguing that a refusal reason was unfounded, filed in the same month as an application whose covering letter says the same point has been addressed, hands the council an easy submission. The honest position is usually that the original scheme was acceptable and the revision goes further than necessary, and that is a position you can hold in both documents.

Where the council objects to duplication

Section 70B is the mechanism, and it is worth reading before deciding. It allows an authority to decline to determine an application where, within the relevant period, a similar application is under consideration or an appeal against the refusal of a similar application has not been determined, and where the authority thinks there has been no material change in the relevant considerations.

Two things follow. Similarity is judged by the authority in the first instance, so the revision needs to be substantive rather than cosmetic. And the authority has a discretion rather than a duty, so a council that wants to negotiate will usually accept the application.

The practical response is to make the difference visible. A revised layout, a reduced unit count, a different roof form, an additional survey answering a technical objection, or a changed access arrangement are all material. A minor amendment to a window position is not, and a council refusing to determine on that basis is unlikely to be criticised.

Where an authority has declined to determine, there is no appeal against that decision itself, which leaves the original appeal as the only route. Plan for that possibility before you rely on the second track.

Managing officer relationships

This is the part that gets underestimated. Twin tracking creates work for a case officer who has just refused the scheme, and it can read as pressure.

Three habits keep the relationship intact. Tell the officer in advance, by telephone or in a short email, rather than letting the duplicate application appear in their workload unannounced. Be explicit that the appeal is a fallback and that you would prefer a negotiated permission. And keep the revised application responsive to their concerns rather than a restatement of the refused scheme with a new drawing number.

On a small authority with two or three officers handling all major applications, the relationship outlasts the application. That is a commercial consideration as much as a courteous one.

Withdrawing one track cleanly

Once one route succeeds, close the other properly.

Where the revised application is approved and the appeal is no longer needed, withdraw the appeal in writing to the Planning Inspectorate as soon as the decision notice is issued. Leaving an appeal running against a scheme you no longer intend to build wastes the inspector's time and can attract a costs application.

Where the appeal succeeds first, decide whether the revised application still has value. Sometimes it does, because it may be a better scheme or carry lighter conditions. Where it does not, withdraw it and ask whether any fee is refundable, since authorities have a discretion on refunds for applications withdrawn before substantive work has been done.

Record which permission is being implemented. Two extant permissions on one site is a conveyancing question later, and a clear file note now saves an awkward enquiry in three years.

When twin tracking is a waste of money

Be honest about the cases where it adds cost and nothing else.

Where the refusal is on Green Belt principle, on the loss of a designated heritage asset, or on a policy objection to the use, a revision that does not change the principle will be refused again. Where the council's objection is one the appeal will resolve in a few months and there is no commercial deadline, the appeal alone is enough. And where the applicant has already used the fee exemption, the second track carries a full fee plus consultant time for a scheme that may be declined under section 70B.

Start by reading the refusal properly, which is where most of this analysis actually sits, and our note on reading a refusal notice and turning it into a plan sets out how. Where the revision is worth making, the Planning Statement accompanying it should deal with the section 70B point head on rather than waiting to be asked.

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