Minor modifications to existing approved schemes - Public forum - Planning Advisory Service (PAS)

We received the following information from our Regional Account Executive at the Planning Portal - not very helpful, and with no time to implement or publish anything on our website before the 1st October: Dear Colleague, Communities and Local Government will be introducing two new application forms for applicants on Thursday 1st October. One of these covers non-material amendments to existing planning permissions. The other covers applications to extend the life of existing planning permissions (and any associated conservation area or listed building consent). These will be incorporated into the suite of Standard Planning Applications forms (1APP). Both of these will incur a fee, although the fee regime must obtain Parliamentary approval before it can be implemented fully. Both forms will be initially introduced as paper copies only from Thursday 1st October 09. It is intended that these forms will become integrated into the online application service next April 2010, once the integration information has been published and circulated to ICT suppliers. I am advised that LPAs will be required to accept and process these forms from the 1st October 2009. The Portal will publish the finalised forms on our website the evening of the 30 September 2009. The downloadable PDF paper forms will be accessible from the following Portal pages: General Public: http://www.planningportal.gov.uk/england/genpub/en/1011888236124.html Professional User: http://www.planningportal.gov.uk/england/professionals/en/1102332404079.html Government User: http://www.planningportal.gov.uk/england/government/en/1103046453668.html There are two sets of fees. Parliamentary approval will not be obtained until mid-November, therefore an interim fee regime will be delivered for the 1st October 2009. We will let you know more when we have the information. Kind regards Ashley Jones BSc (Hons); MRICS; MASI; MCIOB. Regional Account Manager Planning Portal

I'm supposed to keep my agents informed of changes to legislation... so how can it help to give us less than three weeks notice of this change, and then not tell us how much it is going to cost. I'm going to look like a muppet... again.

I too had to hunt this info down and am currently preparing for the changes. Has anyone drafted a definition of non material change or already has an established one in place as part of procedure that they are prepared to share?

Things move on... in addition to the problems above, i also find that my Scheme of Delegation may not be up to the job. As these are under Section 73, i may have to allow for referral to the Development Control Committee, however as it appears that decisions are required within 28 days, its impossible. Never mind, just another thing to put on the to-do-list. Phill

A "Dear Chief Planning Officer" letter has been issued today 22nd September by Steve Quatermain of the DCLG . If you have not yet received it you could email the sender Maria.Stasiak@communities.gsi.gov.uk

The classic test of what is a 'minor amendment' is set out in Wheatcroft. Here the judge held that the question was "Would the effect of the planning permission be to allow development that was in substance not that which was applied for? The main, but not the only criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation...."

Has anyone considered question of whether a condition requiring implementation in accordance with approved plans has/should refer to each plan, drawing individually by number or can just refer to approved plans? Any views?

Does anyone know if there will be a right of appeal after 28 days for minor amendments

My understanding is that right of appeal will exist after 28days.

I have just spoken to the Planning Inspectorate in Bristol and they didn't know anything about it at all. I asked them if these applications can be apealled against and if so would any of them qualify for the householder service. Does anyone have any documents on appeals?

I'm working on the basis that there would be an appeal as its a Section 73 application. Unless someone tells me differantly. Any sign of the application forms?

The forms and guidance notes have been avaiable on the Planning Portal website since 1st October (in pdf form only). The link is http://www.planningportal.gov.uk/england/professionals/en/1115316731994.html.

As far as I understand things, applications for non material minor amendments are made under the new s.96A of the TCPA 1990 (inserted by s.190 of the Planning Act 2008) rather than under s.73. Applications for material minor amendments will be made under s.73 when CLG sort themselves out on it. I cannot find anything that specifically states that there is a right of appeal for applications under s.96A but the explanatory memorandum that accompanied the related GDPO changes does make reference to it being difficult to predict the impact of the new provision on appeals and simultaneously eludes to there being a right of appeal. However I can find no corresponding amendment to s.78 of the TCPA 1990 in the Planning Act 2008 that refers to include refusals under the news.96A ?

Can the LPA refuse an S96A application? Or does it simply advise that the application is a material material and therefore must be resolved via S73 As a consultant, I'd be recommending pursuing a S73 application, as at least if its refused, the owner would then accrue appeal rights I do hope the JPL are going to attach the issue in the next edition, as the only commentary has been one of bewilderment

I spoke to PINs yesterday as I was trying to establish if the appeal on a householder application would be a fast track appeal or not and was told than no right of appeal existed for either new application type, whilst I could understand the non material amendment perhaps not having been included in the right legislative part of the Act to attrack appeal rights, the extension to time should have had normal appeal rights. I queried this with DCLG and got the response that both application types were subject to appeal for non determination and refusal. I have forwarded their respons to PINS

I have just had a response from the DCLG also:- Peter, apologies for the delay in getting back to you. Yes, there is a right of appeal for these measures, following the normal rules set out in article 23 of the GDPO. Any appeals that are in connection with householder applications will go through the new householder system. There is the normal right of appeal against non-determination (obviously in the case of non-material amendments the time on this will start to run from the end of the 28-day determination period). Do get back to me if I can help further, Maria.

We are experiancing a wierd reaction to this and discons. Agents are choosing to use free go's on discharge of conditions to save the £85 (£25) and have indicated they will do this with MINAMs. How can we "advise" DCLG that when they change the fees regs, that it would be an excellent idea to remove the free go in the case of permission. It seams daft to allow someone a free go, when they got what they wanted in the first place... andy views?

Where in the fee regs or circular does it say that there is a free go following permission? The circular says 'Revised applications following withdrawal. refusal, or non-determination (the free go). I believe that this is regulation 8. Paragraph 91 then talks about revised applications following permission (regulation 7) but this relates to varying a permission by having a planning condition discharged or modified (section 73). I can't find anywhere which states that there is a free go following permsion other than by a section 73 application.

Regulation 7 of the fees Regs covers exempt fees following permission. The application, for which a free go is sort, must however be of the same category and description (in the opinion of the LA). You could legitimately argue that an application for a minor amendment, which is not an application for planning permission, does not qualify under the fees Regs as an exempt fee to a grant of planning permission. On other applications I have in the past asked the agent to confirm that the client agrees that the agent is acting in their best interests by using up their one free go under Reg 7 or their one free go under Reg 8 on the smallest possible fee. I do not think we should be looking at doing away with exempt fees that follow the correct pattern ,which should be a minor change to what has already been submitted, half the work has already been done after all.

Re-applying for permission was for a while the only way to get a minor change approved. Minor changes can become necessary for a variety of reasons after permission has been granted and I have used the free go in the past in situations where I would now be looking to apply for approval of a minor amendment.

can a person apply for a minor amendment application for a listed building consent approval?

Has any LPA using Uniform got a simple way of getting the listed approved plans into Decision Notice template so as to facilitate Section 73 sumission? Would like to hear from you if so. Thanks

Have any local authorities dealt with an application under s.96A to add a condition to a planning permission listing plans, where the decision notice doesn't already contain one, with a view to then dealing with an application under s.73 to modify this condition? Any views/ best practice would be gratefully recieved.

We are currently discussing precisely which form such an application should be made on. Non-material amendments have their own application form and it is our view that Minor material amendments should be made on a variation of condition application form under S73. Is this how other people are dealing with such applications?

we are dealing with these as a variation of condition and it seems to be working well

Section 73 form is the correct method. The granting of such an application results in a new alternative permission, dont forget, so if original was subject to S106 you will need to link it to the new permission by deed otherwise provisions will be lost if alternative permission implemented. Regards

Has anyone dealt with a minor amendment to add a list of the approved plans to a reserved matters application? It has been suggested that this isn't possible, but the legislation states 'any application'; "A local planning authority in England may make a change to any planning permission..." http://www.legislation.gov.uk/ukpga/1990/8/section/96A

Shirley, since it is well established that a condition can be imposed on a reserved matters approval I don't see any reason why an applicant should not be able to make a non-material amendment to a reserved matters approval or a condition thereof. But assuming the idea is to allow a subsequent S73 planning application to make a minor material amendment to the scheme, meaning that a new planning permission would be created, it might be cleaner to add the approved plans condition to the outline permission and then have the S73 application refer to that. Either way it will be a headache making sure that everything links together, but should be possible. Perhaps others can help with any experience of S73 applications relating to reserved matters approvals?

Sorry to piggy back a new question but has anyone received an application for a minor material amendment where construction has commenced but the original permission has expired? This gives rise to a problem that any positive decision would expire before it was issued!

if a permission has been implemented then the original permission has not expired only the period by which it had to be implemented so would you not be able to deal with it as a minor alterations. .If the permission has not been implemented due say to condition precedent and the time period for implementation has ceased then there is no longer a permission to be amended

not sure if I mis read the last comment. It is possible to deal with a NMA on a scheme which has already commenced and indeed that is when they are most often needed. However if you are refering to a material amendment rather than a NMA then you would use the Section 73a provision to amend the condition.

Tim, I guess you would simply not put a time limit on the S73 permission because it would be partly retrospective and a time limit for commencement is therefore unnecessary.

The time limit for implementation may be an issue where amendments are sought via S73 applications. In the context of a permission that has already been implemented, eg by the digging of a trench for part of the foundation, but where the period allowed for implementation has now expired. If an amendment to the approved development removes that part of the development on which works were carried out to implement the permission; the amendment cannot be sought through a S73 application to vary a condition on the original permission that specifies the approved plans. The new development would not include the works undertaken to implement the original permission, there is no retrospective element to the new application, S73a does therefore not apply. The default period to implement a new permission granted following the S73 application would be that of the original permission, which has already expired. As the period allowed to implement a permission cannot be varied through an application under S73, presumably a new full application will be required for such material amendments.

If a permission has been implemented within relevant timescales and subsequently completed, can an applicant use the NMA route retrospectively to secure a further change to the permission? E.g. a subsequent NM elevational alteration?

Jon, If the development has been completed, then i would have thought that any new works constitute new development and therefore, if they are indeed development, would require their own planning permission.