Repeat applications and the power to decline to determine

Section 70A of the Town and Country Planning Act 1990 lets a local planning authority decline to determine an application. The power is narrow and it is used sparingly, but it bites exactly where a consultant is most likely to be advising a client to try again: after a dismissed appeal, or after a second refusal of a similar scheme.

The structure is worth holding in mind before advising on a third attempt. Section 70A covers repeat applications after a refusal or a dismissed appeal, section 70B covers applications overlapping with one already under consideration, and section 70C deals with applications made to retrospectively authorise matters already the subject of enforcement action. Each has different conditions and a different practical effect.

When an authority may decline to determine

The two situations in section 70A that matter most are these.

Where, within the preceding two years, the Secretary of State has refused a similar application referred to them or dismissed a similar appeal, and in the authority's opinion there has been no significant change in the development plan or in any other material consideration since. And where the authority has refused more than one similar application in the preceding two years and there has been no appeal against any of those refusals.

So a single refusal with no appeal does not engage the power. Two refusals with no appeal can. A dismissed appeal can, on its own, where the second application is similar and nothing has moved.

The authority must form an opinion, which means it has to consider the point rather than apply a rule, and the decision to decline is capable of challenge if the authority has not addressed whether circumstances have changed.

What makes an application similar

Similarity is assessed on the development, the land and the description, not on the paperwork. The statutory language refers to an application for the same development on the same land, or development and land that are substantially the same.

In practice authorities look at four things. The use proposed. The quantum, meaning floorspace, units or site area. The layout and form, particularly the elements that attracted the reasons for refusal. And the land, including whether the red line boundary has changed in a way that alters the planning unit.

A scheme that drops from fourteen units to thirteen with the same layout and the same access is similar. A scheme that keeps fourteen units but relocates the access to a different road frontage, resolving the highway reason for refusal, is arguably not. The dividing line is whether the new application answers the reasons rather than whether a number on the drawing has moved.

The role of an earlier appeal dismissal

A dismissed appeal is the strongest trigger, because the authority can point to an independent decision that the development is unacceptable. It also changes the evidential burden: an inspector's conclusions on the main issues are a material consideration of real weight, and the authority is entitled to treat them as settling those issues unless something has changed.

Two practical consequences. Read the decision letter closely and identify which issues the inspector decided against the appellant and which were not determinative. A scheme that cures the determinative issue stands a chance. A scheme that cures a secondary point while leaving the main one untouched does not, and submitting it invites a decline to determine.

And watch the two-year window. The power is tied to decisions within the preceding two years, so timing matters, though waiting out the clock is a poor strategy if nothing else changes. Our note on reading a refusal notice and turning it into a plan applies the same discipline to the reasons themselves.

Material change in circumstances

This is the ground on which most second attempts are built, and it has to be evidenced rather than asserted. Four categories of change carry weight.

1. A change in the development plan: a newly adopted local plan, a newly made neighbourhood plan, or the adoption of a site allocation covering the land.
2. A change in national policy: a new edition of the National Planning Policy Framework, a written ministerial statement, or new practice guidance on the issue that decided the earlier case. The Framework was reissued on 17 August 2026 and is organised by policy codes rather than paragraph numbers, so state the edition and code when relying on a change.
3. A change in the factual position: a housing land supply shortfall that did not exist before, a Housing Delivery Test result, a highway improvement now consented, a flood map revision, or a constraint removed.
4. A change in the planning history of the surrounding area: a comparable permission granted nearby since the refusal, which is the most commonly cited and the most variable in weight.

Set these out in a short schedule at the front of the planning statement, with the date of each change and the reason for refusal it addresses. Authorities decline to determine where they cannot see what has moved, and a clear schedule removes the easiest basis for doing so.

Evidence that a scheme is materially different

Where the case rests on the scheme having changed rather than on circumstances, the evidence is comparative and visual.

Produce a drawn comparison: the refused scheme and the new scheme at the same scale, on the same sheet, with the changes annotated. Add a table mapping each reason for refusal to the specific change that answers it, with a drawing reference. Then state plainly what has not changed, because an authority that discovers an unacknowledged similarity reads the whole submission differently.

Quantify where you can. A reduction in ridge height expressed in metres, a setback expressed in metres from the boundary, a reduction in floorspace expressed in square metres. These are the terms in which an officer can record that the application is materially different, and a Planning Statement that supplies them makes the decision to determine straightforward.

Timing between attempts

Three timing judgements.

The first is whether to appeal the earlier refusal at all. Not appealing is what opens the door to the section 70A ground based on two refusals, so a decision not to appeal should be taken knowing that consequence. The point sits alongside the choice covered in our note on withdrawing an application before refusal, since a withdrawal is not a refusal and does not count towards that ground.

The second is whether to wait for an event. Where a local plan is at an advanced stage of examination, or a supply position is about to be published, waiting a few months can convert a hopeless resubmission into an arguable one.

The third is sequencing against the fee exemption, which allows one further application free of the application fee within a defined period after refusal. Those regulations have been amended repeatedly, so confirm the current position with the authority's validation team in writing rather than assuming.

Avoiding a decline to determine

Four steps, and they are all administrative rather than clever.

Write to the authority before submitting, setting out what has changed and asking whether it would regard the application as similar. Many officers will answer, and an answer either way saves a wasted fee. Put the change schedule at the front of the submission. Address the reasons for refusal explicitly, one by one. And where an appeal was dismissed, deal with the inspector's determinative conclusion head on rather than hoping it will not be noticed.

Where the authority does decline to determine, there is no appeal against that decision, which is the point most often missed. The remedies are a further application that is materially different, or judicial review of the decision to decline, which is a narrow and expensive route. Appeal rights where an application has been determined are a different matter, as described in what happens once an appeal starts.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. PlanScope drafts planning statements structured to UK planning policy, with gaps flagged where site evidence or planning history is still needed. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.