Amending planning permissions

A development authorised by planning permission must, once planning permission has been granted, be carried out in strict compliance with the conditions attached to the planning permission and the approved drawings referred to in it.

What options does a developer have if it needs to amend the terms of a planning permission before or during the course of development?

Planning permissions can be varied in the following ways:

Section 96A of the Town and Country Planning Act 1990

A local planning authority has statutory powers to approve "non-material" amendments to a planning permission under section 96A of the Town and Country Planning Act 1990.

There is, however, no statutory definition of what a "non-material" amendment constitutes and there is little guidance as to what types of amendment qualify for determination under this statutory provision. It is up to the discretion of the local planning to decide whether or not to the amendment being applied for qualifies as a "non-material" amendment. It is also not possible to appeal against a local planning authority's decision not to treat an amendment as a "non-material" amendment other than by making an application for judicial review.

The general consensus is that the amendment has to be immaterial and cannot constitute a material change to the development as already approved. If the amendment is not considered to be "non-material" by the local planning authority then a new planning application will be required.

It is also worth mentioning that an amendment may be considered "non-material" in one instance and may be considered material in another. Ultimately the local planning authority will need to exercise its judgment on whether or not the amendment applied for is "non-material" in the specific instances of the case being considered.

If a "non-material" amendment application is approved under section 96A of the Town and Country Planning Act 1990 it does not result in a new planning permission being issued. The conditions and time limits in the original planning permission continue to apply in full.

Examples of what might constitute "non-material" amendments include:

• amendments which do not breach or contradict any conditions of the approved planning permission;
• minor changes which do not increase the height of the approved development; or
• immaterial changes to the description of the approved development in the planning permission.

Section 73 of the Town and Country Planning Act 1990

A local planning authority has enhanced statutory powers to approve "minor-material" amendments to a planning permission under section 73 of the Town and Country Planning Act 1990 through the variation or removal of one or more conditions attached to the planning permission.

If the "minor-material" amendment is approved, this takes effect as a brand new planning permission for the amended development with the required condition(s) varied or removed.

An amended planning permission granted under section 73 of the Town and Country Planning Act 1990 can be subject to new and further conditions to those already set out in the original planning permission.

There is also no statutory definition of what constitutes a "minor-material" amendment, although it is important to understand that a section 73 amendment application can only be used to vary or remove a planning condition. It cannot be used to vary the time limit for implementation.

Examples of what might constitute a "minor-material" amendment include:

• small changes to the external appearance of the approved development where the overall appearance, landscaping, scale and height of the scheme is not adversely affected; or
• changes to building openings that have no adverse impact on any neighbouring properties.

Any amendments which include:

• material changes to the description of the development;
• one or more changes of use;
• significant increases to the size, height and scale of the development; or
• changes which will impact on neighbouring properties,

will require the submission of a new planning application.

For further information, please contact Philip Mundy