Appeals against non-determination guidance

Which applications does the provision relate to?

This was introduced in the 2019 Development Procedure Order, so only relates to planning applications submitted from 1st January 2020 (it does not apply to earlier applications or other types of applications – e.g. applications for Registered Building Consent or under the Advertisements Regulations).  The order also clarifies that it doesn’t relate to applications referred to or called in by the Council of Ministers – Article 10(4). 

Who can submit an appeal against non-determination?

An appeal can only be submitted by someone with Interested Person Status Article 10(1) and the only persons with IPS prior to determination are those with automatic IPS as listed at Article 4(2).  Other persons may gain IPS if the Department deems they have sufficient interest - Article 4(1)(a), but that determination is made at the same time as the determination of the application itself.  However, once an appeal against non-determination is made, everyone who has written in then gains IPS – Article 4(1)(b). 

When can an appeal be made?

6 months from submission (not validation) or, where new information is supplied - the later of 8 weeks and 3 months from the date of provision of additional information (no Environmental Impact Assessment), 16 weeks and 3 months (with EIA) or such later period as may be agreed with the applicant – Articles 8 and 10(4). 

How can an appeal be made?

It must be in writing.  The normal appeal form can (optionally) be used but there is no need to give a reason (other than to state it is against non-determination).  The normal fee(s) also apply. 

Can the Department determine an application whilst an appeal is pending?

Article 8(6) indicates that the determination of an application does not take effect for 21 days or until after any appeal is heard, therefore the Department cannot determine an application after an appeal against non-determination has been submitted. 

Can the Department formally require the submission of more information whilst an appeal is pending?

Article 5(6) prevents the Department formally requesting more information from the applicant after the submission of an appeal against non-determination.  

What is considered at the appeal?

An appeal against non-determination will consider the application in its entirety, its merits or otherwise. The appeal essentially forces a decision on the application.