Split decisions: approving part of a planning application

A split decision planning application, where the local planning authority grants permission for one part of the development and refuses another, is lawful in England only where the proposal is severable in fact. Most proposals are not. Section 70 of the Town and Country Planning Act 1990 gives an authority three choices on the application in front of it: grant unconditionally, grant subject to conditions, or refuse. There is no fourth option labelled "approve part of this".

That does not stop officers suggesting it, and it does not stop applicants asking for it. So the practical question is where the line sits, and what a partial permission is actually worth once you hold it.

Whether an authority can approve part of a scheme

The starting point is that the decision relates to the development described in the application. An authority that grants permission for something materially different from what was applied for has determined the wrong application, and the permission is vulnerable. The description of development on the decision notice is the operative definition of what has been permitted, which is why officers redraft it so carefully.

Where an application covers two or more elements that could each stand alone as a complete development, the position softens. An authority can, in principle, issue a decision granting permission for one and refusing the other, provided the decision notice is clear about which is which and gives reasons for the refusal under article 35 of the Town and Country Planning (Development Management Procedure) (England) Order 2015.

In practice councils do this rarely. Their legal teams dislike it, their systems record one decision per application reference, and the officer report has to explain the split in terms a committee can follow.

Severable and non-severable proposals

Severability is a question of fact about the scheme, not a matter of preference. Ask whether each element would function, be built and be assessed independently of the other.

The awkward middle ground is the mixed-use scheme where one element cross-subsidises another. Sever the enabling development and the remainder may be undeliverable, which is a planning judgement rather than a legal one.

Using conditions to exclude an element

The more common route is a condition that removes something from the permission. A condition might state that the approved drawings exclude a particular structure, or that a specified element shall not be constructed without further permission.

This works only if the condition passes the six tests set out in national guidance on the use of planning conditions: necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects. A condition that guts the scheme fails the last of those. Guidance is explicit that conditions should not be used to make an unacceptable development acceptable by materially altering it, and an applicant who accepts such a condition has effectively agreed to a permission for a different building.

Two drafting points matter. Approve a specific list of numbered drawings rather than "the submitted drawings", and say in terms what is excluded rather than leaving it to inference. Vague exclusions are the ones that come back as enforcement disputes years later, once the site has changed hands and nobody remembers what was intended. A permission recorded properly on the statutory planning register is the only durable record of that intention.

The effect on the description of development

If an element is stripped out, the description of development should follow. A permission described as "erection of two dwellings" cannot sensibly sit alongside a condition permitting one.

Amending the description during determination is possible where the change is not material and the applicant agrees, and it may trigger further consultation. The threshold for re-advertising is a judgement for the authority, and the safer course on anything contentious is to re-notify. We have looked at that in more detail in the article on re-consultation after amended plans.

Where the description cannot be adjusted to match what the authority is willing to grant, the honest answer is usually a fresh application. That is slower. It is also cleaner than holding a permission whose description does not describe the building you intend to put up.

Risks of accepting a partial permission

A partial permission is not a neutral outcome. Several problems follow from it.

The first is the reason for refusal that now sits on the file. It is a material consideration in any later application on the same site, and it hands a template to objectors.

The second is the commercial one. If the refused element carried the margin, the permission you hold may be unimplementable. Take care before starting work, because implementing a permission can extinguish your ability to argue that only the whole scheme was ever viable.

Third, conditions that exclude elements tend to interact badly with later amendment applications. An application under section 73 varies a condition; it cannot be used to add back development that was never permitted. Section 96A non-material amendments are narrower still.

And fourth, the drafting risk. Where a decision notice is ambiguous about what has been approved, the dispute is resolved by reading the notice and the approved drawings together, which is rarely a comfortable place for the applicant.

Appealing the element that was refused

Where the authority has issued a decision refusing part of the application, the refused element carries the usual appeal right under section 78 of the 1990 Act. The appeal is against the refusal, so the appeal site and the description need to match what was refused, not what was granted.

Timing is the trap. A householder appeal must be lodged within 12 weeks of the decision notice, and other appeals generally within six months. Both clocks run from the date on the notice, whatever negotiations are continuing in the background.

An inspector can also allow an appeal in part where the development is severable, so the severability question returns on appeal in the same form. If the elements are interdependent, the inspector has to take the scheme as a whole.

There is one further wrinkle worth checking before you appeal: whether the condition you object to is the real problem, in which case an appeal under section 78 against the condition alone, or a section 73 application, may be quicker than arguing about the refused element.

Alternatives worth trying first

Before anyone reaches for a split decision, three routes usually work better.

1. Withdraw and resubmit the acceptable part. You lose the fee but keep a clean planning history, and the free-go provisions may apply to a resubmission within 12 months of a withdrawal, which is worth confirming with the authority.
2. Split the proposal into two applications at the outset. Two references, two decisions, two appeal rights. Where a site straddles an administrative boundary this is already the position, as set out in the article on cross-boundary sites and applications to two councils.
3. Agree an extension of time and amend the drawings. Most officers prefer this to a split decision, and it keeps the determination within one reference.

The submission itself is where much of this is won. A Planning Statement that sets out, element by element, why each part of the scheme stands on its own terms gives the officer a structure for granting the whole thing, and gives you a written record if the decision comes back divided. Draft it early, and be specific about which parts of the proposal you regard as severable.

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. Enter your postcode on PlanScope to see which reports your site is likely to need.