How do you amend a planning permission – s96a v’s s73

How do you amend a planning permission? It’s a question that is still pondered on by town planners, never mind those who don’t work in the industry.  We’ve come across some planners who don’t understand the process.  So how can it be done?

First a bit of background…

New issues may arise after planning permission has been granted, which require modification of the approved development. Where these modifications are less substantial changes, there are options for amending a planning permission.

If you want to amend a planning permission this can be done via a formal application for either a ‘non-material amendment’ or a ‘minor material amendment’. This process came into effect on 1 October 2009 so it’s not new.

  • Anon-material amendment’ would form an update to the existing permission. This is known as an s96a application or an NMA.
  • Amendments of a greater scale require a new/revised planning permission, and so you would need to make a ‘minor material amendment’. This is known as an s73 application or MMA.

Some amendments cannot be considered under this process. In those situations you need to make a new planning application. The decision about what application is required will depend on the extent of the amendment.

How do I know if the changes are non-material or minor material (s96a v’s s73)?

The Government does not define what changes may be treated as ‘minor material amendments’ which isn’t helpful.  However, in general a minor material amendment is one where the scale and nature result in a development which is not substantially different from the one which has been approved.

Be aware that each local planning authority is responsible for determining the definition of ‘minor material’.   Whether a change is material is a judgment based on fact and degree based on the original planning permission.

Non- material amendments are changes that are considered to be negligible and do not significantly change a permission.

How is a s96a different to a s73?

A s96a is only available to a person with an interest in the land to which the application relates;

  • The process is not limited to modifying conditions – i.e. allows non material changes to the description of development too;
  • The Council has discretion as to scope of consultation;
  • There is no statutory requirement to consider the development plan;
  • A decision should be made within 28 days (or a longer period if agreed in writing);
  • The process amends the existing permission – and does not result in the grant of a new permission (unlike a s73);
  • There is no right of appeal (unlike a s73).

The Government has a handy table showing the differences between the two processes – take a look at it HERE.

When to use the s73 / MMA process?

It’s important to note that the s73 process cannot be used to make minor material amendments if there is no relevant condition in the permission which the change would relate to, for instance a condition listing the originally approved plans.  However, if there is a condition on an approval which requires modification this is the process to use – naturally bearing in mind it has to be a non-material change to the scheme.  For instance, we’ve used s73 to substitute house types on a scheme and even to reduce the number of homes on a large residential scheme or change.

However, you can’t modify the description of development on the decision notice via a s73 route. This was the subject of a Court of Appeal judgement which cleared up this issue.  The case in question Finney v Welsh Minsters** related to the approval of two wind turbines.  The description of development in the permission specified that the turbines were to have a height of 100m.  One of the conditions required the development to be carried out in accordance with specified plans.  The developer then applied under s.73 to vary this condition to insert plans showing turbines with a height of 125m.

The Finney judgement clarified that s73 could not be used to amend the description of development, however it also clarified that: “If a proposed change to permitted development is not a material one, then section 96A [a non-material amendment application] provides an available route”.

Some key principles came from Finney which must be applied in s73 application decision making:
• The description of development in an existing planning permission
cannot be amended at all. Only the conditions can be varied;
• The description of development specified in the decision is that
taken from the original planning permission and not from the
subsequent application to vary any of the conditions.  A s73 can not be used to amend a s73;
• If amending a condition would result in a conflict between it and the description of development (there is no distinction between use and built development), then that particular amendment is beyond the powers under s73 and cannot be made (a fresh planning application would be required);
• In any event, any amendment can only be made provided the new
condition does not fundamentally alter the original planning proposal for which permission had been granted.

How do I change a description of development?

Unfortunately, some Councils can be resistant to changing a description of development as they may not be familiar with this route.  However just because they are not familiar or never used a s96a / NMA doesn’t mean it can’t be used.

As mentioned above you can change the description of development as long as its non-material, for instance if a planning permission contained a specific detail… let’s say the number of houses on a residential scheme, (similar to changing the height of a wind turbine, the development would not change in nature).  You can use a s96a process to remove reference to the number of units, and use a s73 route to then amend the condition which controlled the number of units.

An advisory word of caution – To avoid having to potentially go through this process, always consider your description of development when submitting an application carefully, avoid inserting number of units or referencing a specific figure.  For instance, use ‘Erection of residential dwellings’ rather than ‘Erection of 9 residential dwellings’ as the detail of how many units are proposed would be on the plans which would be conditioned.

And while we’re talking about description of development, when an application is made valid make sure the description of development has not been altered by the Council they cannot change this without your agreement.  If they have changed the description tell them to revert to the one on the application form if it causes problems.

What’s the application process?

How to apply for a minor material amendment (the s73 application)

There is a standard ‘minor material amendment’ ‘Application for removal or variation of condition following a grant of planning permission’ application form.   Don’t confuse this with approval/discharge of planning conditions form.

Plans accompanying applications should clearly show the differences between the approved scheme and the proposed amendment(s).

A s96a amendment also has a standard application form.

What’s the Fee?

The Fee for a variation or removal of condition application is £234.

For a s96a amendment the fee is £34 for householder development or £234 for any other development type.

How will my application be processed?

The development which the s73 application seeks to amend will have been judged to be acceptable in principle at an earlier date.  The Local Planning Authority (LPA) will consider the application against the development plan and material considerations, under section 38(6) of the 2004 Planning Compulsory Purchase Act, and conditions attached to the existing permission(s). Attention will be focused on national and local development plan policies, and other material considerations which may have changed significantly since the original grant of permission.

LPAs have the discretion to decide which consultees should be consulted when an s73 application is received. A proportionate approach to consultation and, in deciding who to consult, should take into account who had a particular interest in, or raised concern about, the original application.

Where an application under s73 is granted, a new planning permission will be issued. The expiry date of the new permission will be the same as the original.

The decision notice will set out all the conditions pertaining to it, including restating the conditions imposed on earlier permissions that continue to have effect.

The description of development should remain as the original permission

If your application is refused, you can appeal under section 78 of the Town and Country Planning Act 1990.  If that’s the situation you’ve found yourself in, our Appeals Ebook covers everything you need to know.

The original planning permission will continue to subsist whatever the outcome of the s73 application.  S73 can not be used to extend a timescale for when the development can begin.

Please note that s73 applications cannot be made for listed building consent applications.  Section 19 of the Planning (Listed Buildings and Conservation) Act 1990 is a different route enabling interested parties to seek a change in conditions.

For s96a amendments a Local planning authority has to be satisfied the proposed alteration is not material; they must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission as originally granted.  The decision will be in writing, it will not be a new decision notice.

Timescale

A decision on s73 application should be made within eight weeks. However, if the original application was for a major development (13-week determining period) the s73 will also have the 13-week deadline.

S96a applications should be determined within 28 days or longer if that has been agreed in writing with the applicant.

 

Related Content

 If you have received a planning approval it’s essential you know what conditions are attached, what they cover and how they can be complied with.  Read out article Understanding Planning Conditions which details the top 5 things to know about planning conditions.

If you’re not sure if you need help from a Town Planner take a look at blog on When to Hire a Town Planner our download a Guide on How to Choose a Town Planner.

**John Leslie Finney v. (1) The Welsh Ministers (2) Carmarthenshire County Council (3) Energiekontor (UK) Limited [2019] EWCA Civ 1868