Second applications and second appeals on one site

A second appeal same site strategy only works where something has actually moved. Section 70A of the Town and Country Planning Act 1990 lets a local planning authority decline to determine an application that is similar to one refused, or dismissed on appeal, within the preceding two years, where the development plan and other material considerations have not moved on since. The power exists precisely to stop applicants wearing the system down by repetition.

So the first question after a refusal is not how soon you can reapply. It is what will be different.

What changes between a first and second attempt

There are four honest categories of change, and it helps to know which one you are in.

The scheme has changed, materially and in response to the reasons for refusal. The evidence has changed, because an assessment that was missing or inadequate has now been done properly. The policy has changed, through adoption of a new plan, a shift in the housing land supply position or a change in national policy. Or nothing has changed and you are hoping for a different officer.

The fourth is more common than anyone admits and it is the one section 70A was written for.

Work through the reasons for refusal individually and write, against each, what the second application does about it. If a reason has no answer, either solve it or accept that it will be repeated. Reading reasons for refusal before you decide to appeal is the right starting point, because the reasons are the specification for the next attempt.

The power to decline to determine a repeat application

Section 70A applies where, within the two years before the application is received, the authority refused a similar application and there was no appeal, or an appeal against refusal was dismissed, or the Secretary of State refused a similar application. In each case the authority must also be of the opinion that there has been no significant change in the development plan or in other material considerations.

Similar is judged on substance. A modest reduction in height on an identical footprint may well be similar. A different use, a different access and a different quantum will not be.

Two related powers sit alongside it. One allows an authority to decline to determine overlapping applications where an applicant has submitted duplicate or near-duplicate schemes at the same time, which limits the old twin-tracking tactic. Another allows an authority to decline to determine retrospective applications where an enforcement notice has been issued.

A decision to decline is not a refusal and carries no appeal on the merits, so the only route against it is judicial review. That makes it worth heading off: write to the authority before submitting, set out what has changed, and ask it to confirm it will determine the application.

Whether a second appeal is an abuse

There is no direct equivalent of section 70A for appeals. An appellant who has been refused again has a right of appeal, and the Inspectorate will determine it.

What the appellant does not get is a fresh roll of the dice on the same evidence. An inspector reading a case materially identical to one dismissed two years earlier will reach the earlier conclusion unless something has moved, and will say so briefly. Consistency in decision-making is a material consideration, and here it cuts against the appellant.

The real exposure is costs. Pursuing an appeal that has no reasonable prospect, or re-running an argument already rejected without addressing the earlier reasoning, is the kind of behaviour that supports an award of costs against an appellant. Before lodging, ask what a reasonable planner would say the prospects are, and write the answer down.

Evidence that the scheme has moved on

The most persuasive second application is one that makes the change visible without being asked.

• A schedule setting each reason for refusal against the change made and the document that demonstrates it.
• Drawings with a comparison sheet showing the refused scheme and the current one side by side, to the same scale.
• The technical evidence that was missing first time, done properly rather than as a summary.
• A short statement of what has changed in policy terms since the refusal, with dates.
• Where the previous appeal was dismissed, a direct response to the inspector's reasoning rather than to the council's original reasons.

That last item matters most. Where an inspector has dismissed an appeal, the inspector's reasoning is the obstacle, not the council's refusal reasons, and a resubmission that answers the wrong document persuades nobody. Putting the analysis in the Planning Statement rather than in a covering letter makes sure it reaches the report.

Policy change as a reason to try again

Policy change is the strongest ground for a second attempt, because it goes directly to the statutory test for declining to determine.

Adoption of a new local plan, a new site allocation, an updated housing land supply position, a change in national policy, or the coming into force of a new national requirement can each alter the balance. So can the passage of time where a policy's weight depends on the age of the plan.

Be precise. Name the change, give its date, and explain the consequence for the specific reason for refusal. A general assertion that policy has moved on is worth nothing, while a statement that the plan was adopted on a stated date and the site is now allocated is decisive. And be careful with weight: an emerging plan is not an adopted one, and the weight given to an emerging policy depends on its stage and the extent of unresolved objections.

Costs exposure on a repeat appeal

Costs at appeal are awarded where a party has behaved unreasonably and that behaviour has caused another party to incur unnecessary expense. Repeat appeals are one of the recognised areas of risk.

The behaviour that attracts an award includes pursuing an appeal with no reasonable prospect of success, failing to address the reasoning of a previous decision on the same site, and producing no new evidence on the point that defeated the earlier attempt. The council carries its own risk in the other direction, since refusing again without addressing a change that has plainly occurred is also unreasonable.

Price that risk before deciding. An appeal that costs a five figure sum to run, with an adverse costs award on top, changes the arithmetic of whether a second attempt is worth making at all.

Deciding how many attempts a site justifies

This is a commercial judgement dressed up as a planning one, and it is better made deliberately than by drift.

Set a limit at the outset: two applications and one appeal, or whatever fits the site's value and the option agreement. Decide in advance what evidence would tell you the answer is no, and then believe it when it arrives. Sites acquire a momentum of their own inside a business, and the cost of the fourth attempt is rarely tested against the probability of success.

One thing worth checking before the second application goes in is the fee position, because the fees regulations allow one further application of the same character on the same site without a fee in defined circumstances. Ask the council's fee team whether your case qualifies, and factor the answer in.

This is general guidance rather than legal advice, and whether a particular application is similar for the purposes of section 70A turns on the facts, so take professional advice 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. Where a resubmission needs a stronger evidence base, see which reports the site is likely to need.