Can a developer make an application for a non-material amendment under section 96A Town and Country Planning Act 1990 to amend a prior approval of permitted development?

Permitted development rights and prior approval

The Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) (the Order) provides that certain classes of development are “permitted development” meaning that no express planning permission is required, instead permission is granted by the Order and s.59 Town and Country Planning Act 1990 (TCPA90). A number of classes of permitted development require application to be made to the local planning authority (LPA) for “prior approval”.

Prior approval means that a developer has to seek approval from the LPA that specified elements of the development are acceptable before work can proceed. The matters for prior approval vary depending on the type of development and these are set out in the Order. A LPA cannot consider any other matters when determining a prior approval application. (See Paragraph: 026 Reference ID: 13-026-20140306 of the Planning Practice Guidance (PPG)).

Permitted development rights are subject to the conditions and limitations specified in the Order. A LPA can also impose additional conditions when granting prior approval, as the PPG makes clear, see for example:

“When considering applications for a permitted development prior approval or planning permission, the local planning authority may propose granting permission with conditions in respect of the farm shop development. This is to ensure that the development is acceptable in planning terms. In imposing any conditions, local planning authorities need to be mindful of the viability of the business and ensure that the conditions are proportionate and reasonably related to issues directly connected to the proposed farm shop. Planning conditions imposed in relation to a prior approval must only be related to the subject matter of the prior approval.”

Paragraph: 112 Reference ID: 13-112-20190722

Amending conditions attached to a prior approval

In Pressland v Hammersmith and Fulham LBC [2016] EWHC 1763 (Admin) the High Court confirmed that where the Order required a LPA’s approval before development permitted by the Order could begin, and the LPA made its approval subject to conditions, that the permission for the development was itself subject to those conditions. The Court therefore confirmed that the LPA should entertain an application pursuant to s.73 TCPA90 to amend any of the conditons imposed by the LPA, or indeed the conditions imposed by the Secretary of State in the Order (see paragraph 52 of the judgment).

S.96A(1) provides:

“(1) A local planning authority may make a change to any planning permission […] relating to land in their area if they are satisfied that the change is not material.”

A permission granted by the Order is a “planning permission”.

In R. (on the application of Fulford Parish Council) v York City Council [2019] EWCA Civ 1359 the Court of Appeal confirmed that the statutory power conferred on LPAs by s.96A TCPA90 to make non-material changes to a planning permission included the power to make such changes to conditional approvals of reserved matters:

“In my judgment, the "planning permission" to which section 96A refers is the package consisting of the grant of planning permission itself, together with any conditions to which the grant is subjected, whether the conditions are imposed at the time of or subsequent to the grant of permission.”  (paragraph 35)

It is therefore clear that conditions on a planning permission granted by the Order whether imposed by the Secretary of State or a LPA following a prior approval application are conditions in respect of which a LPA’s powers under s.73 and s.96A apply. Many LPAs have determined s.96A applications relating to prior approvals. See for example, LB Richmond application reference 14/3498/NMA for:

“Change of use from Class B1(a) to Class C3 residential comprising three flats. [Application for a Non Material Amendment to Prior Approval 14/3498/P3JPA to allow a change of position of access staircase and modification to internal arrangement]”.

Conclusion

S.96A was enacted to be a useful tool in the armoury of LPAs and developers to enable non-material amendments to developments to be formally approved, recorded and undertaken. It is deliberately a flexible tool and applies to “any” permission, therefore encompassing permissions the subject of express grant as well as deemed grant pursuant to a development order. This would include general development orders, as well as local and neighbourhood development orders; it also includes the entire “package” that comprises a permission and so includes reserved matters approvals, and discharges of condition. It is therefore entirely consistent with both the statutory regime and case law for s.96A to be applicable to conditions attached to prior approvals. It would, in fact, be strange if the position were otherwise.