Thursday, 28 November 2013
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.
© MARTIN H GOODALL