Waiting for a planning decision can create practical and financial problems for a homeowner, developer or business. Contractors may be waiting, finance may depend on a decision, or a land transaction may be tied to the outcome of the application. If a local planning authority in England does not determine a planning application within the applicable period, the applicant may have a statutory right to appeal on the ground of non-determination.

What’s Covered

A non-determination appeal does not penalise the council simply for being slow. It transfers the planning decision into the appeal process so that the merits of the proposal can be considered. Anyone considering a non-determination appeal solicitor or another planning-law professional should first confirm that the authority’s decision period has actually expired. Aldwych Legal supports clients across England with planning disputes, appeals and strategic case preparation.

When Does Non-Determination Arise?

Under section 78 of the Town and Country Planning Act 1990, an applicant may appeal where the local planning authority has failed to determine the application within the period allowed for doing so.

For a standard valid planning application, including householder and minor commercial development, the normal period is eight weeks. Major development normally has a 13-week period, while an application requiring environmental impact assessment normally has a 16-week period.

Those periods can be changed where the applicant and authority agree an extended period in writing. The starting point should therefore be the validation date, the type of application and any written extension rather than an assumption that the original deadline still applies.

Check Any Extension of Time Carefully

An extension of time can be sensible where the authority is actively working towards a decision. Further consultation, technical information or committee scheduling may make a short extension preferable to immediately starting an appeal.

The agreement should be clear about the new decision date. If that agreed period expires without a decision, the applicant can then consider the non-determination route.

A council failure to determine planning application issue can become unnecessarily complicated where there is uncertainty over what extension was agreed. Applicants should therefore keep written confirmation rather than relying on telephone discussions.

Appeal or Continue Negotiating?

The existence of an appeal right does not mean an immediate appeal is always the best strategy. If a planning officer has identified one limited issue and a decision appears close, continued discussion may be more efficient.

On the other hand, repeated delay without a clear route to determination can affect funding, contracts and development programmes. The applicant should ask whether continued negotiation is likely to lead to a decision or merely prolong uncertainty.

Aldwych Legal can support strategic planning-dispute preparation where an applicant needs to compare the practical value of further engagement with the council against moving to a formal appeal.

The Appeal Must Address the Planning Merits

A non-determination appeal is not won simply by proving that the council missed its deadline. The Inspector still needs to decide whether planning permission should be granted.

Unlike a refusal appeal, there may be no decision notice setting out formal refusal reasons. The appellant should therefore identify the issues most likely to comprise the authority’s objections and address them directly.

Relevant material may include:

  • the original planning application and submitted plans;
  • planning and design statements;
  • technical reports;
  • correspondence identifying concerns raised by officers;
  • consultation responses and neighbour representations; and
  • relevant development-plan and national planning policy.

Current Planning Inspectorate guidance says that, for a non-determination appeal, the appellant’s statement of case should address the areas most likely to comprise the local authority’s objections.

The Appeal Deadline Is Separate From the Council’s Decision Period

Once the authority’s decision period has expired, there is still a separate deadline for making the appeal.

For most non-determination planning appeals, the Planning Inspectorate must receive the appeal within six months from the expiry of the period in which the local planning authority should have determined the application. This six-month rule also applies to non-determination of householder and minor commercial applications under the current post-1 April 2026 guidance.

There are exceptions. For example, a related enforcement notice concerning the same or very similar development can shorten the appeal period to 28 days in specified circumstances.

The exact appeal timetable should always be checked against the application and any enforcement history. Information about planning appeal advice can help applicants understand how the decision period, evidence and appeal deadline fit together.

Non-Determination Appeals Use Part 2 Written Representations

The appeal procedure changed for applications submitted on or after 1 April 2026. Most section 78 appeals now start under the streamlined Part 1 written-representations process, but non-determination appeals are an important exception.

Where a non-determination appeal proceeds by written representations, it follows the Part 2 procedure. The appellant must submit a statement of case when making the appeal.

That statement should contain the relevant facts, planning and legal arguments, available evidence and the documents, maps and plans relied upon. It should explain why permission ought to be granted and address the objections the appellant expects the authority to raise.

The Planning Inspectorate can use a hearing or inquiry instead where another procedure is more appropriate.

Evidence Should Be Ready Before the Appeal Is Submitted

A delayed council decision can tempt an applicant to submit an appeal quickly and prepare the substantive case afterwards. That is risky.

The applicant should be in a position to make the full planning case when the appeal is submitted. Photographs should be properly identified, plans should be clear and technical evidence should address the likely areas of dispute.

Aldwych Legal supports evidence-led appeal preparation where the application history, technical material and council correspondence need to be organised into a clear case.

New technical material that could reasonably have been supplied during the application stage should not be treated as an automatic way to improve a weak application at appeal. If substantial new evidence or design changes are required, a fresh application may sometimes be a better route.

Who Can Bring the Appeal?

A section 78 non-determination appeal is available to the person who made the planning application. Neighbours and other third parties do not gain their own statutory appeal merely because the authority has delayed its decision.

Interested people may still participate depending on the procedure used. For Part 2 written representations, they can normally make representations during the appeal timetable, in addition to any application-stage comments that form part of the planning record.

Keep Other Property Requirements Separate

Success in a non-determination appeal results in a planning decision. It does not automatically satisfy Building Regulations, licensing requirements, restrictive covenants, title restrictions or other property-law obligations.

Those issues should be considered separately, particularly where the project depends on several approvals before work can begin.

A planning application appeal solicitor or planning consultant may help with the planning appeal, while separate legal or technical advice may be needed for other regimes.

Conclusion

A non-determination appeal gives an applicant a route forward when a local planning authority has failed to decide a planning application within the applicable period. Before appealing, the applicant should confirm the correct decision period, check any written extension and identify the appeal deadline.

The case must still succeed on planning merits. Because there may be no refusal notice, the appellant should anticipate the council’s likely objections and support the proposal with a clear statement of case and relevant evidence.

Aldwych Legal supports clients across England with planning appeal preparation and strategic case management. Early review can help determine whether continued negotiation is likely to produce a decision or whether a properly prepared non-determination appeal is the more effective route.

Key Points

  • If a local planning authority in England does not determine a planning application within the applicable period, the applicant may have a statutory right to appeal for non-determination.
  • The normal decision period for a standard valid planning application is eight weeks, while major developments typically have a 13-week period and applications requiring environmental assessments have a 16-week period.
  • An extension of the decision period can be agreed upon in writing between the applicant and authority, and applicants should keep written confirmation to avoid confusion.
  • Once the local authority’s decision period has expired, an appeal must be submitted to the Planning Inspectorate within six months, although there are exceptions that can shorten this period.
  • Non-determination appeals require submitting a statement of case that addresses the relevant facts, arguments, and anticipated objections from the local authority.
  • The updated appeal process for non-determination appeals follows the Part 2 written representations procedure, which differs from the streamlined Part 1 procedure for other section 78 appeals.
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