Non-determination and the deemed refusal appeal

There is no such thing as a deemed refusal in English planning law. What exists is a right of appeal under section 78 of the Town and Country Planning Act 1990 where the local planning authority has failed to give notice of its decision within the prescribed period. A non determination appeal is that right being exercised, and the phrase deemed refusal is shorthand rather than a legal concept: nothing has been refused, and the council has not decided anything at all.

The distinction matters because it changes what you are appealing against. There are no reasons for refusal to answer, only the case the authority says it would have made.

When the right of appeal arises

The right arises once the period for determination expires without a decision notice being issued. It is the issue of the notice that counts, not a resolution at committee, so an application resolved to be approved but waiting on a section 106 agreement is still undetermined.

Once the period has passed, the appeal can be made at any point up to the deadline for that category of appeal. The Planning Inspectorate publishes the limits, which run to six months from the expiry of the period for most appeals and are shorter for some categories such as householder appeals, so check the current guidance before assuming you have time in hand.

The right does not disappear if the council later issues a decision, but the appeal changes character. If a refusal arrives before you lodge, you appeal against the refusal and answer its reasons.

The statutory periods for each application type

The periods are set in the Development Management Procedure Order 2015 and they vary by application type.

Two points about counting. The period runs from the date the application is valid, not the date it was submitted, so a validation dispute pushes the date back. And the period is not affected by consultee delay, committee cycles or officer sickness, which is why councils ask for extensions.

Prior approval applications work differently and several classes carry their own shorter periods with a deemed consent at the end, which is the opposite mechanism to this one. The advertisement regime has its own version, set out in deemed consent for advertisements.

Extensions of time and what they cost you

An extension of time agreed in writing between the applicant and the authority moves the date from which the appeal right runs. Councils ask for them routinely, and refusing every request is not a strategy.

Agree an extension where the delay has a purpose and an end date. A consultee response due next week, a committee slot in three weeks, an amended plan under consideration. Put the new date in writing and treat it as real.

Resist an open ended extension, and resist one requested a day before expiry with no explanation. A reasonable position is to offer a defined extension in exchange for a written timetable: the date the officer will report, the committee date, and the outstanding items. That conversation also tells you a great deal about whether the recommendation is heading your way.

Appealing against waiting

Appealing on non determination is a tactical decision, and it is often the wrong one.

Consider it where the delay is genuine and open ended, where the officer is unresponsive over months, where a scheme is straightforward and the council has simply not resourced the case, or where the delay itself is causing loss such as an option expiring or a funding deadline passing.

Think hard before appealing where the officer has indicated a positive recommendation, because an appeal removes the authority's ability to grant permission. It also puts your case in front of an inspector who has not visited the area, reading a statement from a council that will now set out every reason it might have refused, including points the officer never raised with you.

The timetable rarely improves matters either. A written representations appeal takes months, so an appeal lodged to speed things up frequently ends later than waiting would have done. Where the council is close to a decision, a firmer letter and a deadline usually achieves more.

What happens to the application itself

Once the appeal is lodged the authority cannot determine the application. It will submit a statement explaining what its decision would have been, usually described as putative reasons for refusal, and the inspector decides the application on the merits.

That statement is the document to worry about. It is written after the dispute has started, by an officer who is now defending a position rather than negotiating one, and it commonly contains more reasons than a refusal notice would have carried. Your appeal statement has to answer all of them without knowing in advance what they are, which is why a thorough planning statement submitted with the original application is worth the effort: it constrains what the council can plausibly say later.

The inspector can grant permission subject to conditions, and will normally ask both parties for agreed condition wording. Where an obligation is needed, you will have to complete a unilateral undertaking, because there is no longer a council decision to attach it to.

Costs risk on both sides

Costs in planning appeals follow unreasonable behaviour rather than the result. An authority that failed to determine an application without good reason, or that raises reasons at appeal it never put to the applicant, is exposed to an application for costs. So is an appellant who appeals prematurely, withdraws late, or produces evidence so thin that the appeal was bound to fail.

Both applications are made in writing during the appeal, and the Inspectorate's guidance on costs sets out the behaviour that attracts an award. Keep the correspondence: a paper trail showing reasonable requests, offered extensions and unanswered emails is the foundation of any costs claim on non determination.

There is also a fee refund mechanism where applications run far beyond the statutory period. Check the current position on the planning guarantee before assuming it applies to your case.

Steps before you appeal

Work through these first.

1. Confirm the validation date and calculate the expiry precisely, then put it in writing to the case officer.
2. Ask what is outstanding, in one short email, and ask for a date for each item.
3. Offer a defined extension of time tied to that timetable.
4. Escalate to the team leader or development management manager if nothing moves within a fortnight.
5. Ask your ward councillor or parish council to ask about the timetable, which is a legitimate enquiry about process rather than lobbying on the merits.
6. Only then decide whether an appeal serves the project better than continued pressure.

An illustrative example. A single dwelling application validated in March reaches week ten with no officer report and an unanswered drainage consultation. The applicant offers an extension to a fixed date six weeks out, in exchange for the officer's confirmation that the report will be written and the consultation chased. The report appears in week fourteen with a recommendation to approve. An appeal lodged at week nine would have been decided months later, by an inspector, with the council free to argue reasons that nobody had raised.

Enter your postcode on PlanScope to see which of the 66 report types your application needs, and get the policy case on the file at submission rather than at appeal.

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.