Walkthrough: appeal after non determination

An appeal against non determination is the one appeal where the appellant chooses the moment. This illustrative walkthrough follows a 38-dwelling scheme on an allocated site at the edge of a market town, where the statutory 13-week period for a major application expired, two extensions of time were agreed, a third was requested, and the applicant lodged a section 78 appeal instead. The appeal non determination example below is constructed to show the procedure rather than to report a real case, and the inspector's reasoning is illustrative.

The scheme was allowed. Whether the appeal saved time is a closer question than the outcome suggests.

Why the application was not determined in time

Three things stacked up, and none of them was unusual.

The lead local flood authority took eleven weeks to respond, having asked for infiltration testing that could only be done once the ground had dried. The county education authority revised its contribution request twice, the second time after the officer had drafted the committee report. And the authority's legal team had a backlog on section 106 agreements, so the draft deed had not been circulated by week 20.

By week 24 the officer's recommendation was known to be positive, the heads of terms were agreed in principle, and nothing was moving. The committee cycle meant the next available date was week 29.

Two statutory points were in play. The planning guarantee entitles an applicant to a refund of the application fee where the authority fails to determine within the prescribed period, which differs for major and non-major applications and has been shortened for non-majors, so the current fee regulations are the place to check. And the right of appeal under section 78 against failure to determine arises once the period, or any agreed extended period, has expired.

The decision to appeal rather than extend

The arguments against appealing were real. An appeal removes the application from the officer who supports it and hands it to an inspector who has never seen the site. It freezes the scheme as submitted, so no further amendment is possible. And it ends the negotiation on conditions and obligations, which then have to be dealt with by a unilateral undertaking.

The arguments for appealing were simpler. The authority could not say when it would determine. Each further extension was being sought without a committed date. And the applicant had a funding condition tied to a consent date.

The test applied was whether the outstanding issues were ones an inspector could resolve on the papers. They were: the drainage objection had been withdrawn after the infiltration results, the education contribution had a published formula, and the only live matter was the quantum of open space. Where the outstanding issue is something that needs a design change, appealing is usually the wrong call, because an inspector cannot negotiate an amended layout.

One further consideration: a costs application against an authority requires unreasonable behaviour, and the bar is high. Delay caused by consultees and a legal backlog is not usually enough on its own.

Assembling the appeal statement and documents

The appeal was lodged with a full statement of case rather than a holding document, which is now the expectation. What went in:

1. The statement of case, structured around the development plan policies, the national policy position, and each anticipated reason for refusal.
2. The application documents exactly as submitted, with a schedule confirming nothing had changed.
3. A completed unilateral undertaking offering the affordable housing, the education contribution, the open space transfer and the monitoring sum, executed and dated.
4. The consultee responses, including the withdrawn drainage objection, which is the kind of document authorities sometimes omit from their questionnaire.
5. A conditions schedule, drafted by the appellant, with a short justification for each condition against the six tests in national guidance.
6. A short chronology of the application, which is what persuades an inspector that nothing was being withheld.

The updated Planning Statement formed the policy spine of the statement of case, and the drafting effort went into the open space section rather than into restating the uncontested material.

The unilateral undertaking is the part most often got wrong. It must cover everything the authority would have secured, because an inspector cannot impose an obligation and will not grant permission if a necessary obligation is missing. Offering slightly more than the authority asked for costs less than losing the appeal.

The authority's putative reasons for refusal

On a non determination appeal the authority states the reasons it would have refused, and these are the putative reasons. They can be a surprise, because they are written by a different person at a different moment.

The tenure point was conceded because the undertaking matched the authority's own policy, which is the practical argument for drafting the undertaking generously. The open space point survived, and that is where the appeal was contested.

Where the putative reasons go beyond anything raised during the application, say so in the final comments and set out the chronology. Inspectors notice a reason that appears for the first time at appeal, and it affects the weight given to it.

The written representations timetable

Written representations suited this appeal: two narrow issues, no witnesses needed, no significant dispute of expert evidence.

The Planning Inspectorate issues a start letter with the timetable, and the deadlines in it are strict. The shape is consistent: the authority returns its questionnaire within days of the start date, the authority's statement and any interested party representations follow a few weeks later, the appellant then has a window for final comments, and a site visit is arranged before the decision. Late material is routinely refused, and an appellant who misses the final comments deadline loses the only opportunity to answer the authority's statement.

Two practical habits help. Diarise every date from the start letter on the day it arrives. And prepare the final comments around the authority's statement rather than restating the case, because an inspector reading a repetition of the statement of case learns nothing.

Interested party representations are published and the appellant sees them. On this appeal eleven residents wrote in, mostly on highway safety, which had not been a putative reason. The final comments addressed the point briefly and pointed to the highway authority's non-objection.

The inspector's decision and the conditions imposed

The appeal was allowed. The inspector found the open space provision acceptable against the policy on the particular facts, accepted the unilateral undertaking as meeting the three obligation tests, and imposed 21 conditions.

Three features of the condition schedule are worth noting because they recur. The inspector adopted most of the appellant's drafting but tightened two conditions and deleted one as unnecessary against the six tests. The pre-commencement conditions were fewer than the authority's draft list, because an inspector will not impose a pre-commencement condition that could be dealt with before occupation. And the time limit ran from the appeal decision date, not from the original application.

Read the conditions against the original draft line by line when the decision arrives. A condition tightened by an inspector reads similarly and behaves differently, and the development then has to comply with the version in the decision letter.

Whether the appeal saved time overall

The honest answer on this scheme is barely. The appeal was lodged at week 26 and decided a little over five months later, against a committee date at week 29 that would probably have held.

What it did buy was certainty. The applicant had a date, a timetable and a decision maker who was obliged to decide. On a scheme with a funding deadline, that is worth more than a few weeks.

The cases where a non determination appeal clearly pays are narrower than they look: where the officer recommendation is negative and the appeal would have happened anyway, where the authority is seeking repeated extensions with no committed date, or where an obligation negotiation has stalled on a point the undertaking can simply resolve. Where an officer supports the scheme and a committee date exists, waiting is usually faster and keeps the relationship intact for the next application.

Two related walkthroughs cover different appeal dynamics: a case decided on a single issue in a householder appeal won on a single point, and the obligation negotiation itself in viability changed the affordable offer on a mixed-use scheme.

You can see the full set of documents a major residential appeal pack draws on in the report index.

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.