This month: a Court of Appeal decision on non-material amendments
For many years, developers, councils (and their advisers) have grappled with the question of whether non-material changes can be made to reserved matters approvals (RMAs) via the statutory section 96A route. The Court of Appeal has recently confirmed that they can.
This is a major win for the development industry as it provides clarity on a useful planning tool. In turn, it helps in the delivery of much-needed housing and important infrastructure.
Changing confusion
Section 96A of the Town and Country Planning Act 1990 (the 1990 Act) was introduced after the 2007-08 recession to allow more flexibility within the planning system. It provides local planning authorities with the power to make non-material amendments to planning permissions in shorter timescales and with less red tape than some other applications. For example, the local planning authority can choose whether or not to consult on the proposed changes.
However, confusion arose over whether the power to make non-material changes applied to RMAs. This was because the legislation did not make it clear one way or another. Some argued that it did not extend to RMAs because the legislation refers to changes to a “planning permission” whereas an RMA is only an approval pursuant to a planning permission, not a planning permission itself. As a result, some developers and local planning authorities have been wary of using section 96A to change RMAs because of the risk of any approval being challenged and quashed by the courts.
Practical consequences
Where a developer wants to change a reserved matters scheme but cannot obtain a section 96A approval, its only option is to submit a new RMA. However, there are time limits on the submission of RMAs, and if out of time, the developer would have to submit a completely new planning application or consider using section 96A creatively to potentially add conditions to the outline planning permission, which may help. This practice came with its own risks and sparked debate as to its lawfulness.
The RMA confusion has also had financial as well as practical implications, as some banks, occupiers and purchasers have been reluctant to accept RMAs amended via section 96A even where a local authority has agreed to grant approval.
Fulford: the facts
The issue arose in Fulford Parish Council v City of York [2019] EWCA 1359. Outline planning permission and RMA was granted for a residential development. City of York Council approved a section 96A application to change the approved plans and amend the bat mitigation strategy. The parish council challenged this decision, arguing that section 96A did not provide the power to make such a change because it only applies to planning permissions. It also argued that this position was supported by other provisions in the 1990 Act and previous case law that has distinguished between an application for planning permission and an application for RMA.
The parish council claimed that without the power to approve such an application, the decision was unlawful and should be quashed.
Judgment day
At first instance, the High Court judge disagreed with the parish council and refused to give his permission to apply for judicial review. The parish council appealed against the judge’s decision and so the matter was referred to the Court of Appeal.
The Court of Appeal dismissed the parish council’s case. It agreed that an RMA is not a planning permission and an application for RMA is not an application for planning permission. However, Lewison LJ explained that in his view this was “not the answer to the question raised by this appeal”.
He went on to clarify that a conditional approval of reserved matters is itself a “condition” subject to which the planning permission has been granted and that the conditions of a planning permission must be seen as an “intrinsic part of the grant”. In other words, the planning permission is a “package” which encompasses conditions: (1) which are imposed when the permission itself is granted; and (2) which are attached to a subsequent approval, such as an RMA. As a result, the RMA forms part of the outline planning permission and an application to amend an RMA is really an application to amend a condition attached to an outline planning permission, which is expressly provided for by section 96A(3)(b).
Helpfully, the court reaffirmed that while section 96A cannot be used to extend the implementation period of a planning permission, non-material changes can be made provided that the application for RMA is made in time.
Certainty at last
This is a sensible decision which brings much-needed clarity to the law. Developers no longer need to worry about section 96A approvals on RMAs being challenged (or quashed) on the basis of incorrect legislative procedure. Importantly, it gives developers the confidence to continue with their reserved matters schemes without the uncertainty, expense and hassle of either a new RMA or a fresh planning application.
Key points
- Section 96A of the Town and Country Planning Act 1990 provides a faster route to making small (or “non-material”) changes to planning permissions. Previously there was confusion over whether section 96A could be used for reserved matters approvals (RMAs) granted in respect of an outline planning permission.
- The Court of Appeal has confirmed that section 96A can be used to make such changes to an RMA. It also made it clear that planning conditions can be attached to RMAs, as this was also previously in doubt.
- The clarity provided by the court’s decision will be welcomed by developers and local planning authorities alike. There may be an uptake in the number of changes to RMAs.
Claire Dutch is head of planning and Kathryn Hampton is a senior knowledge lawyer at Hogan Lovells International LLP
