It all starts with planning – Amending planning permissions

Pencil and compass on blueprints

Despite the Town and Country Planning Act 1990 having been around for some time, there has been a run of case law on the scope of Section 73 (S73) applications, dealing with amending planning permissions.

Section 73 permits an already consented development to come forward with variations to the conditions on the original planning permission (or the deletion of conditions).  Government guidance published in 2014 referred to section 73 applications being for “minor material” amendments.  However, recent case law confirmed that this materiality limitation has no statutory basis. 

Another way to amend a planning permission is under Section 96A which permits “non-material” amendments to be made to any part of a planning permission. 

With the recent case law in mind, we’ve summarised the various ways that you can amend planning permissions under these two sections:

S96A

  • An application to make non material amendments to any part of the planning permission (e.g. description of development, conditions, informatives);
  • When deciding whether the proposed changes are within the scope of S96A (i.e. if they are non-material) you need to look at the changes within the context of the whole development;
  • You also need to consider whether cumulatively, the proposed changes, together with any others approved under previous S96A applications, are non-material;
  • Cannot be used to extend the time period for implementing a planning permission;
  • The application must be made by someone with an interest in the application site;
  • 28 day determination period;
  • No requirement on the Council to consult on the application;
  • No right of appeal if the application is refused;
  • Automatically amends the original planning permission if the approval is granted.  If you change your mind and want to build out under the original unamended planning permission you will need to submit a further S96A application to remove the changes granted by the first S96A approval;
  • A Council’s decision to grant a S96A approval can be judicially reviewed.

S73

  • An application that grants a new planning permission with varied conditions;
  • Can be used to vary or delete conditions, but not to add conditions or to vary the description of development or any informatives;
  • Case law in 2024 confirmed that variations approved under S73 are not limited to “no- material” amendments. This reference was included by the Government in guidance they published on amending planning permissions, but there is no reference to the materiality of amendments in section 73 of the Town and Country Planning Act 1990. Further case law has confirmed that as long as the proposed changes to the conditions do not result in a conflict with the operative part of the planning permission (i.e. the description of development) then there is no limitation of the extent of the variation that can be permitted;
  • Cannot be used to extend the time period for implementing a planning permission;
  • The application can be made by anyone (notice requirements must be complied with if the applicant is not the sole owner of the application site);
  • The determination period is the same as for the original planning application;
  • The applicant can appeal the Council’s decision to refuse to grant the S73;
  • If granted, the application results in a new planning permission with the same conditions as the original planning permission but amended as per the S73 application. The developer can therefore either implement the original planning permission or the new amended planning permission. Care needs to be taken if there are multiple S73 and S96A applications to ensure one planning permission picks up all of the proposed changes;
  • A Council’s decision to grant the new amended planning permission can be judicially reviewed.

The Levelling Up and Regeneration Act provides for a new way to amend planning permissions which has yet to come into force. Under S73B amendments that are not substantially different from what was originally consented can be made to any part of a planning permission, but cannot be used to extend the time periods for implementation. Whilst this is welcomed given the constraint of S73 only enabling variations to conditions it is feared that there could be a lot of case law around what is meant by “substantial”. There is also uncertainty as to when the provision will take effect as it will require secondary legislation to be brought forward, and the Government’s “To Do” list is pretty lengthy at the moment!

For more information on Planning you can get in touch with our team here.

Victoria Du Croz
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Victoria Du Croz

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