Section 70A and declining a repeat application
Section 70A of the Town and Country Planning Act 1990 lets a council decline to determine a similar application made within two years of a dismissed appeal or two refusals. Here are the conditions, the similarity test and what to change.
A council can decline to deal with your application at all. Section 70A of the Town and Country Planning Act 1990 gives a local planning authority the power to decline to determine a repeat application where a similar scheme has recently been refused and the planning position has not moved on. For an architect or agent, the risk window opens the moment a refusal lands, which is exactly when the client asks about resubmitting with a few tweaks. Knowing the conditions tells you whether a fast resubmission is realistic or whether the scheme needs genuine surgery first.
What section 70A permits
The power is discretionary. The authority may decline to determine a relevant application, meaning an application for planning permission or for approval of a matter reserved by an outline permission, if one of two sets of conditions is met. Declining is not a refusal. The application never enters the determination process, so there is nothing to appeal under section 78.
Three neighbouring provisions are often confused, and it is worth keeping them apart before you advise anyone.
| Provision | What it allows | What triggers it |
|---|---|---|
| Section 70A | Declining a similar repeat application | A dismissed section 78 appeal or a Secretary of State refusal in the past two years, or more than one local refusal in that period with no appeal |
| Section 70B | Declining an overlapping application | A similar application already under consideration, or awaiting the outcome of an appeal |
| Section 70C | Declining a retrospective application | An enforcement notice already covers the matters the application would regularise |
Section 70B is the anti twin-tracking provision inserted by section 43 of the Planning and Compulsory Purchase Act 2004. Section 70C came later, through the Localism Act 2011, and bites on applications made to head off enforcement. Only section 70A turns on a past refusal.
The similarity and timing conditions
The first route requires that, in the two years ending with the date the new application is received, the Secretary of State has refused a similar application referred under section 77 or has dismissed a section 78 appeal relating to a similar application. The second route requires that the authority itself has refused more than one similar application in that two-year period and that no appeal has been made against any of those refusals.
Both routes carry the same second limb. The authority must be of the opinion that there has been no significant change, since the refusal or dismissal, in the development plan so far as material to the application, or in any other material considerations.
Count the two years backwards from the date of receipt rather than from the date of validation or the date you post the forms. A scheme refused at appeal in March sits inside the window until March two years later, and an application submitted a fortnight before that anniversary is still exposed.
What counts as a relevant refusal or dismissal
Applications are similar only if the authority thinks the development and the land are the same or substantially the same. That is a judgement about substance, not about drawing numbers. A rear extension reduced from 4m to 3.8m in depth on the same dwelling is substantially the same development. A scheme that drops from six houses to three, moves the access and changes the layout probably is not.
A withdrawn application does not count. Nor does a refusal that was never appealed if it is the only one, because the local route needs more than one refusal. A dismissed householder appeal does count, and householder appeals are decided quickly, so a single dismissal can open the two-year window on a small site faster than most clients expect.
How authorities exercise the discretion
Most authorities use the power sparingly, and many will tell you informally that they would rather refuse and let the appeal run than decline and invite a legal argument. The decision usually sits with a senior officer under the scheme of delegation. Because the test includes the authority's own opinion on whether the planning position has changed, the practical route to avoiding it is to put that change in front of them in writing before you submit.
Say what has changed and cite it. A newly adopted local plan or a plan that has reached a later stage, a fresh edition of the National Planning Policy Framework, a change in the authority's housing land supply position, a new appeal decision on a comparable site, or a survey that answers the technical objection in the refusal reasons. A covering Planning Statement that sets this out, reason by reason against the original decision notice, makes declining harder to justify and gives the case officer something to lean on internally.
Changing a scheme enough to avoid it
The honest answer is that there is no safe percentage. Substance means the development and the land, so the two levers are the proposal itself and the red line. Reducing massing while keeping the same use, the same access and the same footprint tends to read as the same development. Changing the use class, re-siting the building, taking land out of or into the application site, or answering a refusal reason with a design change that alters how the scheme works all push towards a different proposal.
It also helps to check whether you are solving the right problem. Where the refusal turned on the lawfulness of the works rather than their merits, the question may be whether the works amount to development at all rather than how to redesign them. Where the refusal turned on the terms of an existing obligation, varying that obligation by deed can be the cleaner route than a fresh application.
An illustrative example. A pair of semi-detached houses on a garden plot is refused twice in eighteen months, on character and on the loss of a protected tree, with no appeal either time. The agent resubmits with the same two units moved a metre and the tree retained. On those facts the authority could decline under section 70A, because the development and the land are substantially the same and nothing in the plan has moved. Had the second scheme been a single dwelling clear of the root protection area, with a fresh arboricultural report, the similarity test would be much harder for the authority to satisfy.
Challenging a decision to decline
There is no statutory appeal. If the authority declines to determine, judicial review in the Administrative Court is the formal remedy, and the grounds are the usual public law ones: that the conditions in section 70A were not in fact met, that the authority misunderstood the similarity test, or that it reached an irrational view on whether the planning position had changed.
That is a slow and costly route for a small scheme. In practice the better defence is procedural. Ask the authority, before submission, whether it considers the section 70A conditions to be met, and set out the changes in the planning position in the cover letter. If the authority has already indicated it will decline, a pre-application enquiry and a redesign usually beat a claim form.
Check what happens to the fee as well. The fee regulations were amended in December 2023 and the figures are indexed each April, so ask the authority what it will do with a fee on an application it declines to determine rather than assuming a refund.
Practical sequencing after a refusal
Work out which clock you are on before you choose a route. The deadline for a section 78 appeal is six months from the date of the decision notice for most applications and twelve weeks for householder and minor commercial appeals, so the appeal decision often lands inside the two-year window anyway.
- Read the decision notice reasons and separate the ones that are fixable by design from the ones that are policy objections to the principle.
- Decide between appeal and resubmission while the appeal deadline is live, because losing an appeal starts a fresh two-year exposure under section 70A.
- If you resubmit, change the substance, not the dimensions, and say in the submission what has changed in the development plan or the material considerations.
- Support the application pack properly, with a Design and Access Statement that explains the design response to each refusal reason where one is required.
- Keep the correspondence. If you ever need to argue that the authority was wrong to decline, the written exchange is your evidence.
And if the scheme really has not changed and neither has the policy position, the appeal is usually the better buy. A dismissed appeal at least gives you an inspector's reasoning to design against.
If you are rebuilding an application pack after a refusal, you can see which reports your site needs and draft the narrative documents as a starting point for your own review.
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.
Frequently asked questions
Can I appeal a decision to decline to determine?
No. Declining to determine under section 70A is not a refusal, so there is no section 78 appeal right. The only formal challenge is judicial review in the Administrative Court, on grounds such as the conditions not being met or the authority misreading the similarity test. For most small schemes a redesign or a pre-application enquiry is faster and less costly than litigation.
How long does the two year period run for?
The two years end on the date the new application is received by the authority, not the date it is validated. So a scheme whose appeal was dismissed in March is inside the window until the same date two years later. Submitting shortly before that anniversary still leaves the application exposed to the power.
What makes two applications similar?
The authority must think the development and the land are the same or substantially the same. Small dimensional changes to the same building in the same place are usually still substantially the same. Changing the use, the number of units, the access arrangement or the red line boundary moves a scheme towards being a different proposal, though there is no fixed threshold.
Does one refusal with no appeal let the council decline?
Not on its own. The local route needs more than one similar application refused by the authority within the two year period, with no appeal against any of them. A single refusal only opens the door if the Secretary of State refused a referred application or dismissed an appeal on a similar scheme in that same period.
Is section 70A the same as section 70C?
No. Section 70C lets an authority decline a retrospective application where granting permission would cover matters already specified in an enforcement notice. Section 70B deals with overlapping applications made at the same time. Only section 70A turns on a past refusal or dismissed appeal and the absence of change in the planning position.
Will a new NPPF edition count as a change?
It can. The second limb of the test asks whether the development plan or other material considerations have changed since the refusal. A new edition of the Framework, a newly adopted local plan, a shift in the authority's housing land supply position or a relevant appeal decision are all arguable changes. Set them out in the submission rather than leaving the officer to find them.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.