Re-determining an application after a decision is quashed

When a planning decision is quashed, it is treated as never having been made. The application or the appeal is alive again, and it goes back to the body that decided it for a fresh decision. That is the whole of the legal effect, and almost everything clients find difficult about a quashed planning decision redetermination follows from how little the court actually decides.

The court does not grant permission, refuse it, or tell the decision maker what the answer should be. It identifies a legal error and removes the decision. What happens next is a planning judgement made afresh, against the policy and the evidence as they stand on the day of the new decision rather than on the day of the old one. For a scheme that was consented three years ago under a different development plan, that is the risk worth explaining early.

What quashing actually does

A quashing order wipes the decision. Where the decision was a grant of permission, there is no permission. Where it was a refusal, the refusal disappears and the application awaits determination.

Three consequences follow immediately:

• Development carried out in reliance on a quashed permission is unauthorised. If the client has started, stop work and take advice the same day.
• Conditions attached to a quashed permission go with it, including any that had been discharged.
• A section 106 agreement linked to the permission usually survives as a contract but has nothing to attach to, so its triggers never fire. Whether it needs renegotiating depends on its drafting.

Partial quashing is rare. Courts are generally reluctant to sever a single condition from an otherwise lawful permission, so the practical starting assumption is that the whole decision falls.

There is also a filter worth knowing before advising a client to litigate. Section 31(2A) of the Senior Courts Act 1981 requires the court to refuse relief where it appears highly likely that the outcome would not have been substantially different had the conduct complained of not occurred. A technical error that made no difference will not get you a quashing order.

Returning to the decision maker

Where the quashed decision was the council's, the application returns to the council. It is the same application: the same red line, the same description of development, the same ownership certificates. Nothing restarts.

That has practical consequences. The description of development cannot be changed to fix the problem, because that would be a different application. If the scheme needs to change, the honest route is a fresh application rather than a redetermination, and the client needs to understand that the two are different animals with different fees and different consultation requirements.

The officer handling it may not be the one who handled it before. Pull the full case file early, including consultee responses and the original officer report, so you can see which parts of the reasoning the judgment left intact. Knowing how consultee responses reach the officer's case file helps here, because responses more than a year old will often need to be refreshed.

Where the quashed decision was taken by committee against officer advice, or by officers under delegated powers after a committee resolution, the route back is governed by the authority's scheme of delegation. Ask which route is being used, and when, rather than waiting to be told.

Whether fresh consultation is needed

There is no automatic duty to repeat the publicity and consultation exercise. The statutory requirements under the Development Management Procedure Order 2015 were satisfied the first time, and they are not triggered again by a quashing order.

Fairness is the real test. Where time has passed, where the policy framework has changed, or where new material has come in, a decision taken without giving people a chance to comment on the new position is vulnerable to a second challenge. Most authorities therefore re-consult, and most consultants should encourage it.

Three questions settle the scope:

1. Has any material fact changed since the original consultation, including the applicant's own amendments.
2. Has any policy or guidance relevant to the reasons for refusal or approval been reissued.
3. Did the judgment identify a matter on which representations were never invited.

If the answer to any of those is yes, re-consultation on that specific matter costs far less than defending a second claim. Keep the scope narrow and say in the notice what has changed, so the exercise does not reopen matters that were properly settled.

Policy and evidence current at redetermination

This is where redeterminations are won and lost. The decision is taken under section 38(6) of the Planning and Compulsory Purchase Act 2004 in accordance with the development plan unless material considerations indicate otherwise, and both halves of that are assessed as at the date of the new decision.

So the following can all have moved:

The practical task is an audit. Take the original Planning Statement, list every policy reference and every piece of technical evidence, and mark each one as current, superseded or expired. Then rewrite rather than resubmit. A redetermination submission that cites a superseded Framework paragraph number tells the officer the applicant has not done the work.

Note that evidence can cut both ways. A scheme refused on highway grounds three years ago may benefit from a changed policy emphasis, and an applicant with permission quashed may find the plan has turned against them.

Appeal redeterminations and their scope

Where the quashed decision was an appeal decision, the court remits the appeal to the Secretary of State under section 288 of the Town and Country Planning Act 1990, and the Planning Inspectorate decides how to redetermine it.

The scope is not fixed. Options run from redetermination on the existing material by a new inspector, through a further round of written representations on identified matters, to a reopened hearing or inquiry. The Inspectorate will usually write to the parties setting out a proposed approach and inviting comments, and that letter is the moment to argue for the procedure you want.

Two tactical points. A new inspector is not bound by the findings of the old decision, so a finding that helped you last time has to be re-argued. And where the error was narrow, pressing for a narrow redetermination keeps the reopened ground small, which generally favours whoever won on the other issues.

Where the original appeal was against non-determination, the position is more awkward still, because the underlying application remains undetermined by the council. The considerations in appealing non-determination or waiting apply again from a worse starting point.

Timescales, fees and costs in practice

No statutory period applies to a redetermination. The original determination period expired long ago, and there is no new clock, which means the application can sit for months unless you push it.

No further application fee is normally payable, because the application was already made and the fee already paid. That is a different question from fee exemptions on a fresh application, where the rules on planning fee exemptions and reductions can matter. If the authority asks for a fee on redetermination, ask on what statutory basis.

Expect the whole process to run to six months or more from judgment to new decision for a council application, and longer where an appeal is reopened. Build that into the client's programme, their funding arrangements and any option agreement with a deadline.

Costs in the litigation itself are separate and follow the outcome in court. A claimant who wins usually recovers costs from the decision maker, and a consent order will normally deal with costs as part of the settlement.

Advising a client through it

Four conversations are worth having at the outset, before anyone drafts anything.

First, the legal position on works already carried out, if any. Second, the realistic prospect on the planning merits under current policy, which may be better or worse than it was. Third, the alternative of a fresh application, which costs a fee and a new consultation but allows the scheme to change. Fourth, the programme, because a redetermination will almost always take longer than the client expects.

Then make the strategic choice deliberately. A quashed refusal is an opportunity to resubmit the case with better evidence. A quashed permission is a problem to be contained, and containing it usually means getting the redetermination in front of the decision maker quickly, before the policy position drifts further.

Browse the report types on PlanScope to see which supporting documents need refreshing before a redetermination goes back to the authority.

This is general guidance, not legal advice. Challenges and redeterminations turn on the terms of the order and the facts of the case, so take advice from a qualified professional before relying on any of it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.