Thursday, 28 November 2013

Minor amendments

Professional readers of this blog are no doubt aware of section 96A of the 1990 Act, which came into force on 1 October 2009. This allows LPAs to make a change to any planning permission relating to land in their area if they are satisfied that the change is not material.

I have always had reservations about section 96A, on the basis that if a proposed change to an authorised development is not material, then no further permission or consent is required, and it cannot realistically be said in those circumstances that the slightly amended development as executed is not the development that was authorised by the planning permission, or was not within the scope of that permission. On the other hand, if the alterations are material in planning terms, then this (by definition) would appear to take them outside the scope of section 96A, which allows a local planning authority in England to make a change to any planning permission relating to land in their area only if they are satisfied that the change is not material.

There is just one possible situation in which it might be appropriate to make an application under section 96A. It might be advisable to make such an application if there is a condition attached to the planning permission that requires the development to be carried out strictly in accordance with the approved drawings. Arguably, minor variations that are not material in planning terms might still represent a breach of this condition, and so an application under section 96A(4) might be appropriate in those circumstances, so as to avoid any risk of breaching a condition that requires strict compliance with the approved drawings. However, absent such a condition, I cannot see any need to apply under section 96A in respect of minor changes to the design, so long as these are not material in planning terms. If the changes are material, on the other hand, it would not appear to be open to the developer to make use of section 96A, and a fresh planning application for the whole development would have to be made.

In summary, it seems to me that section 96A is yet another example of inept legislative drafting, which does not do what was intended, namely to allow modest amendments to planning permissions without the need for an entirely fresh permission. It is the words "if they are satisfied that the change is not material" that is the source of this problem. Some other formula should have been devised, which would have allowed a greater degree of flexibility, while ensuring that this section could not be exploited as a loophole to achieve a wholly different development compared with that which had originally been authorised.

This train of thought was prompted by a correspondent, who asked me whether this section is relevant to a permission granted before 1 October 2009. The first point to make is that section 96A can only be used if the original planning permission remains extant (either because it was an outline permission followed by the approval of reserved matters, with a 3-year plus 2-year time limit, and the latter that has not yet expired, or because the permission has been implemented by making a start on site, but the development remains substantially uncompleted). Assuming that the original permission remains extant, I do not see that it makes any difference that the permission pre-dated section 96A coming into force. Section 96A allows an LPA to make a change to any planning permission relating to land in their area. This must apply to pre-October 2009 permissions as much as to those granted after that date.

Finally, bearing in mind my reservations about the practical effect of section 96A, I would not accept the proposition that the position has changed since the introduction of s96A, so that non-material amendments now require consent, and that lack of such consent would therefore mean that the development is unauthorised. The section is not phrased in such terms; it simply gives the LPA power to make a change to any planning permission relating to land in their area (if they are satisfied that the change is not material), but only only if an application is made by or on behalf of a person with an interest in the land to which the planning permission relates (see sub-section (4)). The section is purely permissive in its wording and effect, and does not require an application to be made for alterations that are not material.



  1. Dominic Heath-Coleman29 November 2013 at 08:38

    “…a condition attached to the planning permission that requires the development to be carried out strictly in accordance with the approved drawings…absent such a condition, I cannot see any need to apply under section 96A in respect of minor changes to the design, so long as these are not material in planning terms.”

    In our local authority we put a condition along the following lines on every permission granted:

    “The development hereby permitted shall be carried out in accordance with the following approved plans: 6066-02/1/A, 6066-02/2/A and 6066-02/4/B received 20 April 2010.

    Reason: For the avoidance of doubt and in the interests of proper planning.”

    I’m pretty sure that we apply this condition on the basis of government advice (although I can’t think which advice just now). So surely section 96A applications are almost always going to be necessary for non-material amendments, where there will be even a minor deviation from the approved plans listed in this condition?

  2. I was still an inspector when this came in and we had the same discussion informally amongst ourselves at the time. The government then instructed LPA's to impose the type of condition you refer to on every permission for operational development in order to make the new Section work. However, the problem I always had with the instruction was that it seemed to contradict the advice at paragraphs 18 & 19 of the Annex to C11/95 about conditions relating to the completion of development, and in particular the test of need. Fortunately the instruction only applied to LPA's so I didn't impose the condition, although many inspectors did.

  3. In our authority the only real impact of 96a is that what was an informal process has become a formal process. I agree that if a change is not material then seperate consent is not required. Pre 96a we encouraged developers to seek agreement by way of an exchange of letters that a change was not material so as to give developers confidence up front that the LPA will accept that a planned amendment will not be a breach. To my mind 96a plays the same role in practice.

  4. Hi

    Not sure if anyone is out there still looking at this, but here goes .....

    I have always been perplexed by the NMA procedures, approvals and how people view them.

    I maintain that all the NMA system does is, as the last correspondent noted, a) formalise a previously informal system and b) give developers confidence that the LPA is not going to take action against a negligible deviation from some part of a planning permission.

    There is lots of loose use of language out there, and also woolly thinking. In my view, a NMA application and approval is never NECESSARY / ESSENTIAL in terms of adhering to planning controls. This is because, by definition, planning decisions must take into account the development plan and any other material considerations. Considerations which are not material are irrelevant, and a deviation which is non-material cannot be enforced against.

    This is surely the case even where there is a condition specifying the plans to be adhered to. This is because only material deviations from the approved plans would constitute a breach of planning control.

    If my development has a window which is 5cm wider than the window which is shown on the approved plan listed in a condition, and the LPA agree that this is a non-material deviation, then what would they put as the alleged breach in an enforcement notice? The 5cm deviation would be (by their own admission) a non-material change to the approved plan, and so within the ambit of the condition = no breach as such.

    And what would they put as the steps necessary to rectify the breach? It cannot be to alter the window size by 5cm, as this would be a non-material change, therefore unreasonable and excessive in its requirements. If they require a NMA application to be made and an approval to be given, this would be entirely pointless, as all it would do is "regularise" something which is (by definition) not a material consideration. It would also be clearly contrary to guidance, which states that enforcement action should not be taken merely to secure an application.

    I also think that "conditions" on NMA approvals are not really conditions as such. It would be much better to describe them as informatives or similar. What they really do is clarify that the LPA is happy that the original permission can be carried out in accordance with a new plan (showing a particular deviation from the originally approved plan); and that this is not outwith the original permission and its conditions. This is the developer confidence bit.

    Or have I got this wrong??

  5. I would broadly agree with Ben’s comment of 16 February.

    He raises a possibility that had not been considered previously, either by me or by earlier correspondents, namely whether an amendment that is truly “non-material” would even be a breach of a condition that had required that the development be carried out in strict accordance with the approved drawings.

    As one of my previous correspondents observed, the only practical use of the section 96A procedure is to give the developer an assurance that the LPA will not attempt to take enforcement action against some footling departure from the approved scheme. Without an approval under section 96A the developer might not be absolutely confident that they would not otherwise be put to the trouble and expense of fighting enforcement action against some minor alleged breach.

    I still believe that to be of real practical value, section the 96A ought to be widened to allow for material amendments within certain specified limits. But I have little hope that such a change is ever likely to be made.

  6. Rather than an enforcement notice, couldn't the council issue a breach of conditions notice? With the remedy to put the building exactly in line with the approved plans as per the condition? There is no appeal, so couldn't the council force you to adjust the window by 5cm and you have no recourse but to obey?

    You would need to go to court and prove you didn't breach the condition 'in accordance with' which would then come down to the definition of the word accordance in the context of the conditions.

  7. The latest anonymous comment raises an interesting possibility. However, if there is a genuine question as to whether the departure from the approved drawings really does represent a breach of the condition (or is merely de minimis), a BCN should not be used, and an Enforcement Notice should be served instead (provided the LPA is satisfied that is ‘expedient’ within the terms of section 172 to do so), so that the issue can be tested on appeal before an inspector. Ministerial advice has always made this clear.

    If a BCN were to be issued in respect of a departure from the approved scheme that is not ‘material’, this would arguably be Wednesbury unreasonable and would be open to quashing by JR. An LPA would be ill-advised to serve a BCN in these circumstances. However, the unreasonableness of the notice would not be a defence to a prosecution for non-compliance in the Magistrates’ Court, and so Judicial Review under CPR Part 54 would be the only remedy for the developer in these circumstances.

  8. I wish there was a way to keep track of correspondence on this site; this has always been a topic that has perplexed me - particularly where a condition has been imposed, but the changes proposed to the uncompleted development would fall within a householder’s PD rights - so it’s nice to stumble across ongoing discussion of the matter.

  9. Martin, do you have any views as to why "a person with an interest in the land" (s.96A(4)) is defined for Wales (96A(10)) but not for England? Do you consider this could be broadened in England to include the person who initially obtained permission?

  10. The short answer to the anonymous query of 25 January is “No. I don’t know why there is definition in the Welsh legislation but not in the English.”

    For what it’s worth, my own view is that having an interest in land means having a legal or equitable interest, i.e. ownership, or an interest under a trust. A purchaser who has not yet completed their purchase has an equitable interest in the property they are buying, but only after contracts have been exchanged.

    An applicant for planning permission would not have such an interest unless they are also an owner or have an equitable interest in the property. If you think about it, this is entirely logical, because planning permission enures solely for the benefit of the property, and not for the personal benefit of the applicant.

  11. what would be your view of the status of an amended scheme granted a new p/p via NMA process but where a clearly 'material' change was shown on the submitted drawing(s) but not referenced in the paperwork?

    1. This is an occasional planning conundrum that doesn’t just relate to non-material amendments. There can be other cases where planning permission is granted for a described development, but the approved drawings show something different, or more extensive.

      I suggest that Barnett v SSCLG [2009] EWCA Civ 476 might be cited as authority for the proposition that approved drawings cannot in themselves be taken as authorising something that clearly falls outside the scope of the development described in the operative wording of the permission. That case involved permission for a domestic extension, but the red line on the site plan showed a substantial enlargement of the planning unit. Both the High Court and the Court of Appeal ruled decisively against the developer. The permission did not authorise the enlargement of the planning unit, notwithstanding that this was shown on the site plan, which was one of the approved drawings.