Non-determination appeals may become more strategically important under the new rules

For applications submitted on or after 1 April 2026, the new planning appeal rules appear to create a more significant divide between appeals against refusal and appeals against non-determination.

The key issue is not simply procedural change. It is that the reform may alter applicant behaviour. If most refusal appeals now proceed under a more constrained written representations route, while non-determination appeals retain a more flexible one, some applicants will inevitably start asking whether non-determination has become the more attractive strategic option in certain cases.

That is a serious question. But it is not yet one that can be answered with certainty.

What is changing?

For most standard appeals against refusal, the new Part 1 procedure now applies. This is a more restricted process. In broad terms, the appeal is determined on the basis of the information that was before the local planning authority when it made its decision. There is generally no separate Statement of Case and very limited scope to introduce new material later.

That is a marked change in emphasis. The appeal form becomes the principal vehicle for setting out the appellant’s case, and the underlying logic is clear: if the application was not properly evidenced when submitted, the appeal should not become the opportunity to rebuild it.

By contrast, appeals against non-determination will generally continue to follow the Part 2 procedure. That route remains more flexible. A Statement of Case can still be submitted, the process is more involved, and there is still room for a fuller exchange of representations during the appeal timetable.

In practice, that creates a clear procedural distinction between the two routes.

Why non-determination may now look more attractive

The question is not whether government wants to speed up appeal decision-making. It plainly does. The question is what applicants are likely to do in response.

What emerges is a system in which the refusal route is now much less forgiving. If an application is refused, there may be little opportunity to introduce new reports, refine the planning case, or cure modest gaps in the material that was before the authority. That may be manageable where the application material is thorough and the key issues have been properly identified at the outset. But that will not always be enough. In reality, issues sometimes arise late in the determination process that neither the authority nor the applicant had fully identified earlier. If those points are not surfaced and dealt with before refusal, the Part 1 route may leave limited room to respond to them on appeal.

That is where non-determination begins to matter more strategically.

If an authority fails to determine an application within the statutory period, an applicant may now see greater value in appealing against non-determination rather than waiting for a refusal that would place them into the more restrictive Part 1 procedure. The attraction is obvious: the non-determination route appears to preserve a fuller opportunity to explain the case through a Statement of Case and a broader written process.

In practice, that may make non-determination appeals more than just a remedy for delay. They may become a more deliberate procedural choice in some cases.

The likely strategic shift

The risk is that the new system incentivises applicants to think differently about timing.

Previously, refusal and non-determination appeals were often seen as different entry points into a relatively familiar appeal process. That no longer appears to be the case. From 1 April 2026, the route taken may materially affect how much can be said, when it can be said, and what material the Inspector is likely to consider.

That has obvious strategic implications for developers and landowners. If an application has been submitted on a generally sound basis but there are points that may need fuller explanation at appeal, the non-determination route may appear more attractive than allowing the authority to issue a refusal and confining the case to the narrower Part 1 framework.

The change is therefore not just procedural. It may affect how applicants manage delay, how they assess risk during determination, and when they decide to take control of the appeal process.

But there is an important caveat

That analysis comes with an important qualification.

PINS retains the ability to change the procedure. So while the new framework suggests that non-determination appeals will generally remain within Part 2, it cannot yet be assumed that this will always be the case in practice. The Inspectorate may decide that a different procedure is appropriate in particular circumstances.

That matters because it introduces an immediate degree of uncertainty. At this stage, it is simply unknown how often PINS will exercise that discretion. It may be used sparingly. It may become a more active case management tool. Until there is a clearer pattern of decisions and practice, applicants should be cautious about treating non-determination as a guaranteed route to a fuller written process.

So the strategic opportunity is real, but it is not absolute.

What this means for applicants

For developers, promoters and landowners, the first lesson remains the same: applications need to be stronger at the point of submission. The new refusal route leaves much less room for repair later.

But the second lesson is now equally important. Where an authority is drifting towards non-determination, applicants will need to think carefully about whether delay is merely frustrating, or whether it has become strategically relevant.

In some circumstances, appealing against non-determination may offer procedural advantages that a refusal appeal no longer does. That does not mean it will always be the right course. There may be commercial, political and relationship reasons to continue engaging with the authority. But it does mean that the route to appeal now requires more deliberate judgement than before.

The key issue is that refusal and non-determination can no longer be treated as broadly interchangeable paths. They now appear to carry different procedural consequences, and those consequences may shape strategy much earlier in the life of an application.

Conclusion

The new appeal rules may do more than streamline refusals. They may also increase the strategic relevance of non-determination appeals.

That is because the balance of procedural flexibility appears to have shifted. Refusal appeals are now, in most cases, far more constrained. Non-determination appeals appear to preserve a broader opportunity to present the case in full. For some applicants, that may become a material consideration.

However, the position is not yet settled. Because PINS can change procedure, it remains unknown how often non-determination appeals will in fact proceed under the more flexible route. Until that becomes clearer in practice, the tactical advantage should be seen as a possibility rather than a certainty.

The question is not whether non-determination appeals will become more prominent. They may well do so. The real question is how reliably they will offer a different procedural platform once the new rules begin to bed in.

Writer: Anthony Frendo, Planning Director