Non-Determination Appeals

 

A non-determination appeal is what you can lodge when your local planning authority simply fails to decide your planning application within the time it is allowed. You are not appealing a refusal, because there has been no decision at all. Section 78(2) of the Town and Country Planning Act 1990 treats that silence as something you can take to the Planning Inspectorate, and section 78(5) tells the Inspectorate to proceed as though the council had refused you.

The right exists because an application left undecided indefinitely would otherwise leave you with no remedy. Missing the decision deadline does not grant planning permission automatically: the application remains undetermined unless and until the council decides it or the applicant uses the appeal route. In practice, though, it is one of the most over-recommended moves in the planning system. Appealing is frequently slower than waiting, and it takes the decision away from the people who were about to make it. This page sets out when the right arises, how long you have, and the circumstances in which using it will actively work against you.

 

 

 

 

When the right to a non-determination appeal arises

 

Section 78(2) gives you the right to appeal where the authority has done none of three things within the relevant period: given you notice of its decision, given you notice that it has declined to determine the application under its powers to refuse repeat or overlapping applications, or told you the application has been referred to the Secretary of State.

The relevant period comes from article 34 of the Development Management Procedure Order, SI 2015/595. For an application that is not major development it is eight weeks beginning with the day after the authority receives it. For major development it is thirteen weeks. Environmental impact assessment cases run to a longer period. A disputed local-list requirement has its own route. If you serve an article 12 validation dispute notice, the application can be treated as a non-validated application without the disputed particulars. If the notice reaches the council during the final seven working days of the original determination period, on its final day, or after it has expired, article 34(3) substitutes a seven-working-day determination period beginning with receipt of the article 12 notice. If the notice is served earlier, the original determination period continues. Our guide to a validation dispute explains the procedure and the separate deadline for the council to issue its validation or non-validation notice.

Two points catch people out. Ordinarily the clock runs from receipt of a valid application, not from the day you pressed submit, so a fee that was never paid or an ownership certificate that was never supplied can mean the period has not started. The article 12 procedure is the important exception: article 34(5) defines a non-validated application by leaving out only the disputed local-list particulars or evidence, so the determination period can run without those items while the validation dispute is resolved. Our validation requirements page explains what normally has to be in place. The period is also measured against the authority giving you notice of its decision, not against a committee merely resolving to grant. A resolution to approve subject to a legal agreement is not itself the decision notice, so the non-determination clock can continue to run.

 

Extensions of time and what agreeing one costs you

 

Article 34(2)(c) lets you and the council agree an extended period in writing. Extensions are routine, and councils ask for them constantly, particularly where consultee responses are late or a section 106 agreement is being negotiated.

Agreeing an extension is usually sensible, but understand what you are giving up. While an agreed extended period is running, the application has not gone undetermined, so the section 78(2) right has not arisen and you cannot appeal on that basis. You have traded your leverage for goodwill. That is often a good trade where the council is genuinely progressing the application, and a poor one where extensions are being used to park a file nobody intends to pick up.

Note also the sting in the tail of article 34(2)(c): an extension can only be agreed where you have not already given notice of appeal. Once you have appealed you cannot then agree your way back into the local process.

 

How long you have to lodge the appeal

 

Article 37(2)(d) of SI 2015/595 gives six months in the ordinary case, and this is where the most common misunderstanding sits. Where there has been no decision, the six months runs from the expiry of the specified period, meaning the end of the eight or thirteen weeks or any extended period you agreed. It does not run from some later date of your choosing, and it does not restart because the council keeps promising a decision.

For non-determination, householder and minor commercial applications are not on the shorter twelve-week refusal deadline. They normally have six months from the expiry of the council’s decision period. The important exception is where an enforcement notice has been served on the same or substantially the same land and development, when the Order can reduce the appeal period to twenty-eight days. If an enforcement notice has landed anywhere near your site, check the type A and type B rules before assuming you have months in hand.

For the ordinary section 78 non-determination deadlines, treat the statutory period as fixed. Do not assume the Planning Inspectorate can extend it simply because there was a good reason for being late.

 

Appealing takes the decision away from the council

 

This is the single most important consequence and the reason to think hard before lodging. Once you appeal under section 78(2), jurisdiction to decide whether to grant permission passes to the Secretary of State. In England that is the end of the matter: the council loses the power to grant you what you asked for, and it cannot take it back even if it was days away from issuing an approval.

You may come across references to a short period of dual jurisdiction, during which the authority can still issue its decision even though an appeal has been lodged. That is section 78A of the Act, and it does not help you in England. Section 78A(6) makes the additional period one that has to be prescribed by a development order, and no such period has been prescribed for England. The four week figure you will find quoted is the Welsh provision, article 26A of the Welsh Development Management Procedure Order, and it has no application to an English application.

So treat lodging the appeal as removing the council from the picture entirely. If your case officer has drafted a recommendation to approve and is waiting on one consultee, appealing throws away a likely permission and replaces it with a contested process in front of someone who has never visited your site. Government guidance itself advises applicants to engage with the authority to establish when a decision might come before deciding whether to appeal against non-determination.

 

What it costs and how the planning guarantee fits in

 

You do not pay a fee to the Planning Inspectorate to lodge a planning appeal. The cost is your own time and any professional fees for preparing the statement of case, which for anything beyond a householder appeal is usually the larger figure.

Your original application fee is a separate question. Planning fees are set nationally and the amount depends on the type of application, so see our guide to planning application fees for the current position. Where an authority has taken too long, the planning guarantee may entitle you to a refund of that fee, and the interaction with an appeal matters: our guide to the planning guarantee explains when the refund arises and when lodging an appeal affects it.

Awards of costs are available at appeal where a party has behaved unreasonably. Unreasonable delay by an authority, or a failure to substantiate a position, can found a claim, but costs awards are the exception and should not be assumed as a way of funding the exercise.

 

How a non-determination appeal is decided

 

Because there is no decision notice, there are no reasons for refusal to argue against. Section 78(5) has the Inspectorate assume the authority decided to refuse, and the authority then has to set out the case it would have made. That can cut both ways: you may find grounds appearing that were never raised while the application sat with the officer.

Written representations, hearings and inquiries are all available, and you indicate your preference when you lodge. A non-determination appeal does not use the expedited Part 1 written representations route. Under the post-April 2026 procedure it follows Part 2 if it is dealt with in writing, so the appellant submits a full statement of case with the appeal, the council sets out the case it would have made, and interested people can make representations. That makes the evidence position materially different from a Part 1 refusal appeal. Our guide to planning appeals covers the procedures in more detail.

 

Should you appeal at all?

 

Often, no. A non-determination appeal is a remedy for deadlock, not simply for slowness, and the two are easy to confuse.

It is usually the wrong move where the officer is engaged and progressing the file, where a recommendation to approve is in prospect, where the only obstacle is a section 106 agreement being drafted, or where the delay is a late consultee response that is imminent. In all of those, appealing converts a probable local approval into an uncertain appeal, and typically takes longer than simply waiting.

It is worth considering where the authority has gone silent and will not commit to any timetable, where extensions are being requested repeatedly with no progress, where you are being pressed to accept obligations you regard as unlawful, or where a genuine commercial deadline means further open-ended delay is worse than an adverse decision you can then challenge.

Before lodging, ask the case officer directly for a decision date in writing and escalate to the development management team leader if none comes. A dated commitment is worth more than an appeal, and if it is broken you still have the six months, provided you have kept track of when the specified period actually expired.

See also our guide to the types of planning application.

 

Non-determination relevant legislation

 

Check the “Changes to Legislation” panel on each page below before relying on the text, as amendments are often made before the consolidated wording is updated.

• Town and Country Planning Act 1990, section 78: the right of appeal, with subsection (2) covering failure to determine
• Town and Country Planning Act 1990, section 78A: the dual jurisdiction provision, which depends on a period being prescribed by development order and operates in Wales rather than England
• DMPO 2015, article 12: the validation dispute notice procedure and the council’s response deadline
• DMPO 2015, article 34: time periods for decisions, including valid and non-validated applications and the seven-working-day rule
• DMPO 2015, article 37: appeals, including the six month and twelve week limits
• Town and Country Planning (Development Management Procedure) (England) Order 2015: full contents

Other Planning Appeal Sections

 

Non-Determination Page Updated: 30th August 2026