Prior Approval Appeals: A Practical Guide
Refused prior approval? This practical guide covers your Prior Approval appeal rights, the deemed grant mechanism, what Inspectors can and cannot consider, and the appeal procedure.
PRIOR APPROVALPLANNING APPEALSPLANNING CONDITIONS
Andrew Ransome
4/28/20267 min read
If your prior approval application has been refused — or granted subject to conditions you consider unreasonable — you have the right to appeal.
But prior approval appeals are not the same as planning appeals, and treating them as though they were is one of the most common mistakes made by developers and their advisers.
This article explains the appeal route, how the process works, what an Inspector can and cannot consider, and what you need to get right before you submit.
The Statutory Basis: A Different Kind of Appeal
A prior approval appeal is made under section 78(1)(c) of the Town and Country Planning Act 1990 (TCPA90), which covers appeals against a refusal to grant "any approval required under a development order."
This is distinct from a section 78(1)(a) appeal against a refusal of planning permission — and that distinction matters in law.
The Court of Appeal confirmed in Pressland v Hammersmith & Fulham LBC [2016] that an appeal against refusal of prior approval falls under section 78(1)(c). It does not involve a grant of planning permission — permission already exists by virtue of Article 3(1) of the GPDO 2015.
The prior approval procedure is, as Keenan v Woking BC & SSCLG [2017] confirmed, the discharge of a pre-commencement condition attached to that permission.
This shapes everything that follows: what the Inspector can consider, what conditions can be imposed, and what the appeal is really about.
What Can Be Appealed?
You can appeal where the LPA:
Refuses prior approval
Grants prior approval subject to conditions you consider unreasonable or unlawful
Fails to determine the application within the statutory period — in most cases, this triggers a deemed grant of prior approval rather than an appeal (see below). However, for Part 1, Class AA (upward extensions to dwellinghouses) and all Part 20 Classes (upward extensions and new dwellinghouses above existing buildings), there is no deemed grant mechanism. If the LPA fails to determine these applications, an appeal is the only available route.
Appealing Conditions: The s73 Route
Where prior approval has been granted subject to conditions, a further appeal route exists under section 73 of the TCPA90 (or section 73A where the breach has already occurred).
This is an application for planning permission without compliance with the disputed condition — not a fresh prior approval application.
The constraint that conditions must be "reasonably related" to the prior approval matters does not strictly apply in s73 proceedings.
The Deemed Grant: When the LPA Misses the Deadline
One of the most powerful — and most misunderstood — features of the prior approval system is the deemed grant mechanism.
For most Classes under Parts 1 and 3 of the GPDO, if the LPA fails to make and notify a determination within the statutory period, prior approval is deemed to be granted by operation of law. No appeal is necessary.
The Court of Appeal confirmed this principle in Murrell v SSCLG [2010], finding that the prior approval procedure is "attended by the minimum of formalities" and that handling mistakes by the LPA, requests for new forms, and even submission of additional plans, did not stop the statutory clock from running.
Extensions to the statutory period can be agreed in writing between applicant and LPA under Article 7(c) of the GPDO — confirmed in Gluck v SSHCLG & Crawley BC [2020] as applying to all types of prior approval procedure.
The Critical Limitation: Deemed Grant Does Not Create PD
The deemed grant is powerful, but it is not a cure-all. In Keenan, the Court of Appeal confirmed unequivocally that development cannot become permitted development by default.
If the development does not comply with the relevant conditions and limitations of the GPDO — for example, because the building does not qualify under the relevant Class — it remains unlawful regardless of the LPA's failure to determine the application.
The practical consequence is this: if your application is saved by the deemed grant, you should still be confident that the development genuinely complies with every condition and limitation of the relevant Class.
If there is any doubt, you remain exposed to enforcement action.
The First and Often Decisive Issue: Is the Development 'Permitted Development'?
On any prior approval appeal where the LPA disputes that the development is PD at all, this is the first main issue and — if decided against the appellant — it is determinative.
The Inspector will not proceed to consider the prior approval matters if the development falls outside the relevant Class.
Some LPAs will refuse prior approval while simultaneously noting that the development may not be PD. This does not affect the appeal outcome: the Inspector must still determine both questions.
The pre-appeal checklist for PD compliance is therefore critical (see the checklist at the end of this article).
What the Inspector Can and Cannot Consider
Once PD compliance is confirmed, the Inspector's deliberations are strictly confined to the matters specified in the relevant Class as subject to the prior approval determination. These vary by Class but include combinations of the following:
Transport and highways impacts
Flood risk
Contamination
Noise
Amenity of adjoining premises (including overlooking, privacy and loss of light)
Adequate natural light in all habitable rooms
External appearance and design
Siting, design and impact on the character of the area
The Inspector cannot go beyond these matters, and cannot refuse on grounds that do not appear in the relevant Class — however legitimate those concerns might be in a planning context.
The Role of Planning Policy
The NPPF has a limited role in prior approval appeals.
Where the GPDO requires the LPA and Inspector to have regard to the NPPF — for example, in Part 3 Class MA and Part 20 appeals — it can only be used so far as it is relevant to the subject matter of the prior approval.
It cannot be deployed to frustrate the purpose of the PD right itself.
In East Hertfordshire DC v SSCLG [2017], the High Court confirmed that an Inspector was correct to disregard NPPF policies limiting new dwellings in the countryside when determining a Class Q appeal, because applying them would have the potential to frustrate the purpose of the introduction of the class.
The development plan also does not apply in the conventional sense. As section 70 TCPA90 does not apply to prior approval, and neither does the section 38(6) duty under the Planning and Compulsory Purchase Act 2004. Development plan policies may nonetheless be used as evidence to support assessment of a prior approval matter — for example, local plan policies on noise or amenity may inform the Inspector's judgment — but they cannot be the basis for refusal.
Conditions on Prior Approvals
The GPDO itself imposes conditions on the planning permission it grants — for example, that development must be carried out in accordance with the approved details.
The LPA and Inspector may impose additional conditions, but only where the relevant Class specifically confers that power.
There is no general authority in the GPDO to impose conditions beyond what the Class provides. Where such a power exists, conditions must be reasonably related to the prior approval matters.
In practice, this means:
A commencement condition (as would be imposed on a conventional permission under s91 TCPA90) is not appropriate on a prior approval.
A matching materials condition is unnecessary on a Part 1, Class A appeal — paragraph A.3 of the Order already requires materials to be of similar appearance to the existing dwelling.
Hours of operation may be restricted, but only where noise or traffic impacts are prior approval matters for the Class in question.
A negatively-worded condition preventing occupation until approved works have been carried out can be a practical solution where natural light is borderline.
Planning Obligations
Planning obligations have a very limited role in prior approval appeals.
Community Infrastructure Levy Regulation 122, which applies to the grant of planning permission, does not apply to prior approval determinations — permission is granted by the GPDO, not by the LPA or Inspector.
An obligation may be offered in mitigation of the prior approval matters, and could be considered, but it is not possible to impose a condition requiring an obligation to be entered into.
Developments subject to a Prior Approval procedure e.g. change of use from Class E to residential may be liable for CIL.
Development Outside the Application
Where plans submitted with a prior approval application show development that was not the subject of the application, the Inspector cannot grant approval for those works.
The April 2026 Procedural Changes: Submit Once, Submit Right
A significant change to appeal procedure came into effect on 1 April 2026. Under the new Planning Appeals Procedural Guide published by the Planning Inspectorate — which applies to all appeals relating to applications submitted on or after that date — amended plans and revised schemes can no longer be submitted once an appeal has been made.
The new procedure enshrines a "submit once, submit right" principle.
If an applicant considers that amending the scheme might overcome the reasons for refusal, they should withdraw the appeal and make a fresh application to the LPA — not attempt to modify the scheme through the appeal process.
This is a material change from previous practice, where it was accepted that amended plans could be submitted on appeal subject to the usual natural justice caveat that all parties had the opportunity to comment.
The practical consequence for prior approval appeals is clear: the application submitted to the LPA must represent the complete and final scheme.
Evidence should be thoroughly prepared before submission. Any deficiency in information or design that might previously have been capable of resolution during the appeal process can no longer be addressed at that stage.
Pre-Appeal Checklist
Before submitting a prior approval appeal, the following should be confirmed:
Has the LPA refused within the statutory period? If not, check whether the deemed grant applies (and whether it is available for the Class in question).
Is the development actually PD? Check all conditions on existing permissions for the site; check for Article 4 Directions; confirm the existing use is lawful; confirm development has not commenced.
Does the development meet every limitation in the relevant Class?
Have you identified the precise prior approval matters for the Class? Prepare evidence on each one — transport statement, FRA, contamination report, daylight/sunlight assessment as appropriate.
Is the submitted scheme complete and finalised? From April 2026, no amendments can be made once the appeal is submitted.
Are there any conditions on the prior approval that need to be challenged? If so, consider whether s73 is the appropriate route rather than a further prior approval application.
Get Prior Approval Planning Appeal Advice
If you are considering a project that may benefit from the prior approval route, get in touch for clear, practical advice on your options.
Andrew Ransome MRTPI Email: andrew@adpltd.co.uk | Tel: 01206 242070
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