The provisions of section 96A of the Town and Country Planning Act 1990 (“the 1990 Act”) enable a person interested in land to which a planning permission relates to apply to the local planning authority (“LPA”) for a “non-material” change to be made to that planning permission. The power conferred by those provisions on the LPA includes power to impose new conditions and to remove or alter existing conditions. A successful application does not result in an entirely new planning permission, but rather an amended planning permission. No right of appeal to the Secretary of State lies in the event of a refusal. A recent decision of the court demonstrates a specific use of an application under section 96A of the 1990 Act.
In R (on the application of Nicholson) v Allerdale Borough Council [2015] EWHC 2510 (Admin), the claimant successfully challenged the grant of planning permission by the LPA to the interested party – the operator of a global motor rallying programme – for the construction of a manufacturing and evaluation centre for performance cars, including a test track and ancillary facilities. The court accepted the claimant’s argument that a condition attached to the planning permission dealing with noise – when interpreted properly – did not allow for the control of maximum noise levels, something that the LPA intended it to do.
The judge, in considering whether he should exercise his discretion not to quash the planning permission, concluded that the public interest in the proposed development proceeding was sufficiently great that it was preferable to allow the parties to seek to remedy this flaw rather than for the planning permission to be quashed. That would have to be achieved, however, within a finite and reasonably short timescale. Accordingly, he made his judgment available to the parties in draft from and invited submissions within four days of doing so.
As a result of what followed, the interested party made an application under section 96A of the 1990 Act, and the LPA made the amendments to the flawed condition necessary to reflect its original intentions in relation to noise. (The claimant had rejected, for a number of reasons, a proposal that resort should be had to a planning obligation.) The court then exercised its discretion not to quash the planning permission, and limited relief to a declaration that the claim had been successful to the extent apparent above.
John Martin is a planning law consultant
