Partner Karen Jones, in our Planning & Environmental law team, explains how developers can apply to make non-material amendments to a planning application after permission has been granted.
Section 73 Town and Country Act 1990
There is provision built into the Town and Country Planning Act 1990 (“1990 Act”) by which a developer can seek amendments to planning permissions once granted.
Section 73 of the 1990 Act provides that developers can make “applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted”.
Where a developer makes a Section 73 application the Local Planning Authority is only permitted to consider the question of the conditions attached to the planning permission. If the application is granted then the developer has two planning permissions which could be implemented and developed out. If the application is refused the developer still has the benefit of the original planning permission.
The key point is that an amendment must be able to be facilitated through the variation or deletion of a condition.
The operation of Section 73 of the 1990 Act therefore gives the developer an opportunity to request changes to the conditions attached to a planning permission without risking losing the original planning permission.
If Section 73 of the 1990 Act did not exist all the developer could do would be to appeal the grant of planning permission to challenge any condition he sought to alter. He would be subject to the time limits for an appeal on that basis. When determining the appeal the Inspector is able to consider the entire development as a whole, not just the condition and accordingly the hard won planning permission could be lost.
Section 96A Town and Country Planning Act 1990
Section 96A of the 1990 Act provides a developer with the ability to make an application for a non-material amendment. This section allows the Local Planning Authority to make changes to a planning permission “if they are satisfied that the changes are non-material”.
The requested changes must be “non-material” and what that means will depend on the specific scheme and planning permission. An example in certain cases might be phasing, although this would depend on the materiality of such changes. The changes could be made to the conditions or the description of the development but must be “non-material”. In other words they cannot change the permission in any material way.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
