New evidence at appeal and when it is refused

New evidence planning appeal questions usually arrive after the refusal, when somebody realises the ecology survey that would have answered reason two can now be commissioned. Sometimes that works. In a householder appeal it does not work at all, because no further material is accepted once the appeal is made. In other procedures the inspector has discretion, and discretion is exercised against parties who could have produced the document earlier.

Section 79 of the Town and Country Planning Act 1990 lets an inspector deal with the application as if it had been made to them in the first instance. That sounds like a clean slate. In practice the Inspectorate's procedural guidance treats the appeal as a review of the scheme that was refused, and a materially different scheme belongs in a fresh application.

Why appeals are not a fresh start

Two principles pull in opposite directions. The redetermination principle says the inspector decides the application afresh on the policy and facts at the date of the decision. The fairness principle says nobody should be asked to comment on material they have not seen, and the council should not have to defend a scheme it never assessed.

Fairness wins most of the time. An inspector who admits a substantially new case has to give the council and third parties an opportunity to respond, which means delay, and delay on an appeal that has already taken months is a real cost to everyone.

So the working assumption should be that the appeal is fought on the material the council had, plus argument. Argument is unlimited. Evidence is not.

Evidence the council never saw

Where a refusal reason says the applicant has failed to demonstrate something, the obvious response is to demonstrate it. Inspectors do accept that kind of evidence in written representations, hearings and inquiries, particularly where it answers a reason for refusal directly rather than changing the scheme.

Three things improve the chances. Submit it with the statement of case rather than later, explain why it was not before the council, and send a copy to the council at the same time so they can respond in their statement. Where the document is technical, a statement of common ground narrowing what is actually disputed is worth more than the report itself.

Be honest about the awkward case. If the council refused because a survey was missing, and you produce the survey at appeal, the council may reasonably say it has not had the chance to consult its ecologist. The remedy an inspector often prefers is to dismiss the appeal and leave you to reapply with the evidence, which is slower than doing it properly in the first place. Our note on proving a surface water strategy after refusal works through that pattern on drainage.

Householder appeals and the bar on new material

The householder appeals service is expedited, and the trade for speed is a hard rule. Once the appeal is made, neither the appellant nor the council can submit further information. The Inspectorate sends the council's file and the representations made on the application to the inspector, and that is the evidence.

The consequences are worth spelling out.

• Everything you want the inspector to read must be in the appeal submission itself
• Photographs, sections and sight line drawings must be attached at the point of lodging
• You cannot reply to the council's appeal questionnaire or to neighbour comments
• An amended scheme cannot be introduced at all

So prepare the householder appeal as a single, complete document. Answer each refusal reason, attach the drawings the council saw, and add any photograph or measured section that supports the case. If the scheme needs to change, do not appeal. Reapply, using the free go where the application qualifies for a repeat application within twelve months of the earlier decision.

Requests to admit late documents

Outside the expedited services, late material is a request rather than a right. The inspector weighs whether the document is relevant, whether the other parties can fairly respond in the time available, and whether there is a good reason for its lateness.

Policy and case material sit in a different category from factual evidence. An inspector will almost always accept an updated development plan document, a new written ministerial statement or a recent appeal decision, because the decision has to be taken on the policy in force at the time, a point we cover in when national policy changes during your appeal.

Adjournment and cost consequences

Late evidence that forces an adjournment is the classic trigger for an award of costs. The national guidance on appeal costs treats unreasonable behaviour that causes another party to incur wasted expense as the test, and producing material at the door of the inquiry is squarely within it.

Costs can run both ways. A council that introduces a new objection at appeal, or that produces evidence it withheld during determination, is equally exposed. So is a council that refuses an application on a reason it then declines to defend.

The practical discipline is a timetable. Work back from the inquiry or hearing date, agree a statement of common ground early, and treat the exchange of proofs as a deadline rather than an aspiration.

Amended plans at appeal and the Wheatcroft position

Amendments at appeal are tested against the principles from the Wheatcroft case, which ask in substance whether the development has been so changed that granting it would deprive those who should have been consulted of the chance to comment. Minor amendments that reduce the scale of the scheme, delete a window or increase a setback are usually acceptable. Changes to layout, unit numbers, access or use rarely are.

Two practical points. Submit any proposed amendment with the appeal, clearly identified as an amendment, with a plan showing what changed. And explain why it does not prejudice anyone, rather than leaving the inspector to work it out.

Where the amendment is refused, the inspector determines the appeal on the original scheme, which may well be the scheme you no longer want. That is the risk of leaving design changes to the appeal stage.

Commissioning reports before the appeal is made

The fix for almost all of this is sequencing. Before you lodge, list every refusal reason and ask what evidence answers it, then commission that evidence and build it into the appeal submission.

Survey seasons are the constraint that catches people. Bat emergence surveys run broadly from May to September, great crested newt environmental DNA sampling has a spring window, and reptile surveys need warm months. A refusal issued in November can leave you choosing between an appeal without the survey and a delay until the following summer. Neither is comfortable, and the decision belongs to the client with the facts in front of them.

The full report index is a quick way to check which documents a refusal reason usually needs, and the framing of the case itself belongs in the Planning Statement equivalent that accompanies the appeal.

Illustrative example. An appeal is lodged against refusal of four dwellings, one reason being the absence of a protected species survey. The appellant commissions the survey in June, submits it with the statement of case in July, and sends the council a copy the same day. The council's ecologist responds in its statement, the inspector admits the survey, and the reason falls away. Had the appeal been lodged in December, the same evidence would not have existed. The example is illustrative.

Formal defects that get appeals returned before any of this matters are covered in why the Inspectorate returns appeals as invalid.

This is general guidance rather than 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.