Non material amendments


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The courts have recently provided an answer to an often debated issue, whether non-material changes to reserved matters approval (RMAs) can be made via section 96A of the Town and Country Planning Act 1990 (the Act).

R (Fulford Parish Council) v City of York Council and Persimmon Homes (Yorkshire) Ltd [2019] EWCA Civ 1359 centres around the approach that Local Planning Authorities should adopt.

In the past, approaches on this issue have been inconsistent. Some Local Planning Authorities acknowledge the need for developers to make nonmaterial changes to RMAs in this way, whereas others decline to deal with these applications as section 96A of the Act applies to “planning permissions” but not RMAs.

The perceived distinction between planning permission and RMAs in the eyes of some Local Planning Authorities has resulted in a lack of a uniform approach and has led to dissatisfaction and confusion in the sector.

This appears to stem from the legislative code which separates the definitions of ‘planning permission’ on the one hand and an ‘approval’ on the other. If RMA’s were not considered to be a planning permission, then RMA’s would site outside the scope of non-material amendment under section 96A.

In Fulford v York Council, the Parish Council declined to deal with Persimmon Homes’ application under section 96A of the Act. The Parish Council argued that there was a fundamental distinction between a planning permission and a RMA, suggesting that “…if you successfully apply for apples, you do not end up with oranges”.

For this reason, it suggested, section 96A did not apply and could not be applied to this type of application.

Whilst the Court of Appeal acknowledged that a RMA is not of itself a planning permission, it held that the use of the wording ‘planning permission’ referred to in section 96A should be more widely interpreted.

In situations where planning permission is granted subject to conditions, those conditions form an intrinsic part of the permission. The definition, it was held, should be interpreted to include an application for an amendment to an approval (or conditional approval) of reserved matters, as well as the underlying outline planning permission.

This is a reassuring decision for developers who would otherwise be faced with not being able to make necessary non-material changes to schemes as they evolve, and is particularly key for those developments consented in outline where detail is set out within the RMA.

This is particularly important where the time period for submitting further RMA’s has expired. The decision is also indicative of a shift in the way judicial decisions on planning are made, towards a practical solution based approach.

Although a sensible and welcomed decision, it is worth noting that ‘non-material change’ is not defined by the Act. Developers and Local Planning Authorities will no doubt interpret applications on a case by case basis to decide whether proposed scheme amendments can be classified as a ‘non-material change’.

Finally, it is worth noting that while the Court of Appeal have clarified the position regarding section 96A applications, they chose not to comment as to whether the same principles apply to minor material amendment applications to RMAs made via section 73 of the Act, so, for the time being Developers will have to be cautious in taking this approach, as the legal power of a Local Planning Authority to vary RMAs using section 73 remains unclear.

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