Extension of time or non-determination appeal

An extension of time keeps the application with the council and keeps the negotiation alive. An appeal against non-determination takes the decision away from the council and hands it to an inspector who has never seen the correspondence. The choice turns on whether the officer is working towards approval or towards nothing, and on one detail most applicants miss: agreeing an extension of time can displace the fee refund the planning guarantee would otherwise give you.

What an agreed extension does

Article 34 of the Development Management Procedure Order 2015 sets the determination periods. Eight weeks for most applications, thirteen for major development, sixteen where the application is accompanied by an environmental statement. It also allows a longer period where that is agreed in writing between the applicant and the authority.

The agreement must be in writing. An officer saying "we will need a bit longer" on the telephone does not extend anything, and an applicant who relies on it keeps a live right to appeal that neither side has thought about.

Extensions are ordinary rather than unusual. Consultee responses arrive late, a scheme is amended, a section 106 deed takes longer than anyone hoped, a committee sits monthly. The instrument exists because the statutory periods were never realistic for anything complicated. And an authority that refuses to ask for one, on an application that plainly needs it, is usually signalling that the recommendation is already written.

What an extension buys is influence. The officer who is drafting a recommendation can be persuaded, can accept amended drawings, can negotiate conditions. An inspector cannot be lobbied at all.

What a non-determination appeal does

Section 78(2) of the Town and Country Planning Act 1990 gives a right of appeal where the authority has not given notice of its decision within the relevant period, including any agreed extension. The appeal must be lodged within six months of the expiry of that period.

Lodging it has an immediate effect: the authority can no longer determine the application. It will instead tell the Planning Inspectorate what decision it would have made and why, which becomes the putative reasons for refusal you have to answer.

That is the hidden cost. On a refusal appeal you argue against reasons the council has committed to in writing. On a non-determination appeal the council writes its reasons after seeing your grounds, which is a tactical advantage you have handed over.

There are cases where it is still right. A council that has gone silent, a scheme where the policy position is clear and the officer is simply absent, an applicant with a funding deadline, or a situation where the delay is being used to extract an obligation that fails the regulation 122 tests.

Fees, refunds and the planning guarantee

The fees regulations provide for the planning fee to be refunded where an application has not been determined within 26 weeks of validation, subject to conditions including whether a longer period has been agreed. Check the current regulations before relying on the detail, because the fees rules are amended frequently.

The practical point survives the detail. Signing an extension of time can remove an entitlement that was about to arise, and officers do not always mention it when they email asking for another eight weeks. If the application is approaching 26 weeks, work out what the refund would be worth before you agree to anything.

Appeals carry their own costs. There is no fee for a section 78 appeal, but there is the cost of preparing the statement of case, and on an inquiry the cost of counsel and witnesses. Set that against the value of the fee refund and the delay, rather than treating the appeal as free. Costs can also be awarded against either party where behaviour has been unreasonable, which cuts both ways on a non-determination case.

The risk of a refusal during the extended period

An extension does not protect you. The authority can refuse at any point within the extended period, and some do exactly that when the negotiation stalls, because a refusal restarts the clock in their favour and leaves you to appeal.

Manage it by asking two questions before signing. What is the officer's current recommendation, and what would have to change for it to become an approval? An officer who will not answer the second question is telling you something.

Where the answer is that the scheme needs amending, agree the extension and amend. Where the answer is that the principle is unacceptable, an extension only delays the inevitable, and the sooner the appeal is lodged the sooner the decision arrives. The distinction between a householder application and a full application matters here too, because the appeal routes and timescales differ between them.

Committee cycles and how they shape the choice

On anything going to committee, the real deadline is the agenda deadline, not the statutory date. Reports are typically finalised two to three weeks before the meeting, and committees in many authorities sit monthly with gaps over Christmas and Easter.

So an extension of four weeks may in practice buy nothing, because it lands between cycles. Ask the officer which committee date the application is targeted at, then set the extension to a fortnight beyond it. That single adjustment prevents the sequence where an extension expires three days before the meeting and has to be renewed in a hurry.

Where a section 106 deed is in preparation, extend to allow for engrossment and completion after the resolution, not just to the resolution itself. A permission cannot be issued until the deed completes, and the drafting regularly takes longer than the planning negotiation did.

Recording the agreement and knowing when to stop

Put the extension in an email that states the application reference, the new date and the fact that it is an agreement under Article 34. Ask the officer to reply confirming. Then check the council's register, because the published target date should change and it is the version anyone else will look at.

Refuse a further extension when three things line up: the officer cannot say what would make the scheme acceptable, the delay is costing more than the appeal would, and the evidence base is complete enough to stand on its own at appeal. That last condition is the one people get wrong. An appeal is decided on what is in front of the inspector, so a scheme with gaps in its technical evidence is weaker at appeal than it was at the council, where the gaps could still be filled.

Before deciding, read the application pack as an inspector would. A Planning Statement that sets the scheme against the development plan, and the technical reports the constraints demand, is what turns a non-determination appeal from a gamble into a case. Browse all 66 PlanScope report types and start a draft to check nothing is missing before the clock runs out.

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.