Recovered appeals and called-in applications

A recovered appeal is one the Secretary of State takes away from the inspector and decides personally. A called-in application is one the Secretary of State takes away from the council before any decision is made. Both use different statutory powers, both add months to a programme, and both end with a decision letter that can only be challenged in the High Court. If your scheme is large, sits in the Green Belt, or has attracted a campaign with national reach, plan for the possibility from the day you submit.

The two are confused constantly, including in committee reports. They are not the same mechanism and the criteria differ.

The two powers and what separates them

Call-in works on a live application. Under section 77 of the Town and Country Planning Act 1990 the Secretary of State may direct that an application be referred to them instead of being determined by the local planning authority. The council loses the decision. Where a direction is made, section 77(5) gives the applicant and the council the right to be heard, which in practice means a public inquiry.

Recovery works on an appeal that has already been lodged. Appeals are normally transferred to an inspector for decision under Schedule 6 to the same Act, and the Secretary of State may direct that a particular appeal be determined by them instead. The inspector still runs the event. What changes is who signs the decision.

The practical difference is timing. A call-in stops a council from granting permission, so it is the tool used when a department fears the wrong outcome locally. Recovery happens after a refusal, when the department wants the final say on the appeal.

The criteria for calling in an application

Call-in policy has been governed since 2001 by a written ministerial statement setting out that the power is used very selectively, and only where an application raises issues of more than local importance. The categories given include conflict with national policy on important matters, significant effects beyond the immediate locality, substantial regional or national controversy, the interests of national security or of foreign governments, and novel issues of development control.

Read that against your own scheme honestly. Vocal local opposition is not more than local importance. A thousand objection letters from one town does not meet the test on its own. What does move the needle is a departure from the development plan on a subject ministers have spoken about, a proposal affecting a designation with national standing, or a case that would set a pattern.

There is a separate route that brings the department into the picture without a call-in. The Town and Country Planning (Consultation) (England) Direction requires a council to notify the Secretary of State before granting permission for certain categories of development, including specified Green Belt development, development of playing fields, and applications the Environment Agency has objected to on flood risk grounds. Notification is not a call-in, but it creates the window in which one can be made. If your officer report says the application is subject to the consultation direction, the recommendation cannot be issued until the department has responded.

When an appeal is recovered

Recovery criteria are set out in written ministerial statements rather than in the Act, and they have been revised more than once. Categories that have appeared include residential schemes above a stated unit threshold, proposals for large scale development in the Green Belt, major infrastructure and mineral working, cases raising novel legal difficulties, and classes of development the department has decided to take back for a defined period. Because the list changes, check the statement current at the time your appeal is lodged rather than relying on a colleague's memory of the last one.

Recovery can happen at any point before the inspector issues a decision, and it sometimes happens late. A direction landing two weeks before an inquiry closes does not stop the inquiry. It changes what the inspector produces at the end of it.

How the procedure changes

For the parties, day to day conduct barely changes. The inquiry or hearing runs under the same procedure rules, the same statements of case and proofs are exchanged, and the same inspector presides. Costs applications are still made at the event.

What changes is the output and the clock. A transferred appeal ends with a decision letter, usually within a period the Planning Inspectorate publishes and monitors. A recovered appeal ends with a report to the Secretary of State containing findings of fact, conclusions and a recommendation, and then an indefinite wait. There is no statutory deadline for the Secretary of State to decide. Months are normal and longer is not unusual, particularly where a general election, a policy revision or a related case intervenes. The point about national policy changing during an appeal applies with more force here, because the gap between the close of the inquiry and the decision is so much longer.

Build that into your programme. Option agreements, funding covenants and pre-let arrangements written around a thirteen week determination will not survive a recovered appeal.

The inspector's report and the decision that follows

The report is the document that matters. It records what the evidence established, resolves the disputes of fact, and recommends allowing or dismissing. The Secretary of State is entitled to disagree with the inspector on planning judgement, and does, but the decision letter has to explain why in terms a court can follow.

The protection for the parties sits in the inquiry procedure rules. Where the Secretary of State differs from the inspector on a matter of fact, or takes into consideration new evidence or a new matter of fact that was not raised at the inquiry, the parties must be told and given the chance to make written representations or to ask for the inquiry to be reopened. That rule is the reason so many challenges to recovered decisions are argued on procedural fairness rather than on the planning merits.

Read the report before you read the decision. If the recommendation went your way and the decision did not, the reasons for departing from it are where any challenge begins.

Making representations once the file leaves the inspectorate

After recovery or call-in, correspondence goes to the casework team in the department rather than to the Planning Inspectorate. Keep it disciplined. Unsolicited further representations after the inquiry has closed are generally not accepted unless they relate to a genuine change of circumstance, and a party who bombards the department with material tends to invite a letter circulating everything to everyone and extending the timetable.

Legitimate reasons to write include a new appeal decision on the same policy point, a revision to national policy, an adopted development plan, or a change in the housing land supply position. Send it once, copy every other party, and say why it is material.

Where a scheme is heading for either process, the written case has to stand on its own without anyone to explain it. A Planning Statement that sets out the development plan, the material considerations and the balance in sequence is worth more in a recovered case than in an ordinary one, because the person deciding was never in the room. Neighbours and local groups can appear too, and the practical mechanics are the same as in taking part in any planning appeal.

Challenging the eventual decision

A recovered appeal decision and a called-in decision are both challenged by statutory review under section 288 of the Town and Country Planning Act 1990. The application must be made within six weeks of the decision, permission from the Planning Court is required, and the grounds are public law grounds: error of law, failure to give adequate reasons, taking into account an irrelevant matter, procedural unfairness. Disagreeing with the planning judgement is not a ground.

Six weeks is not extendable. If a decision is likely to be adverse, instruct counsel to read the inspector's report in draft parallel to the decision, so the analysis is already done when the letter arrives. And check invalidity risks early in any appeal, since the reasons the Planning Inspectorate returns appeals as invalid apply before any of this begins.

This is general guidance, not legal advice. Take advice from a qualified planning lawyer before acting on a call-in direction, a recovery direction or a challenge deadline.

PlanScope drafts the supporting statements behind an application, structured to UK planning policy. Reports should be reviewed before submission, and we do not guarantee planning approval.