changing or adding a condition via a non material amendment - Public forum - Planning Advisory Service (PAS)

Section 96A only allows changes to the permission which are "non-material", but this can include adding new conditions and changing and deleting existing ones.  A change to a condition which is "material" would have to be made under section 73.  In addition only a person with an interest in the land to which the planning permission relates can make an application under section 96A - anyone else would have to apply under section 73.

In terms of issuing the permission following amendment under section 96A, one way would be to issue the permission as amended and have an informative at the end to say it has been amended on X following an application under section 96A.

Hello,

I am a private householder & have found this site both interesting, useful and occasionally fascinating. This thread is particularly timely and useful for me, especially as it has led me to “Greater flexibility for planning permissions: guidance”.

https://www.gov.uk/government/publications/greater-flexibility-for-planning-permissions-guidance

I recently received PP for extensions to a pair semi-detached houses and I consider one of the conditions unacceptable. More pertinently, it is, in my view, contrary to Planning Circular 11/95 - “The use of conditions in planning permissions” (paragraphs 3 to 5 and 36 & 37 and 61);

https://www.gov.uk/government/publications/the-use-of-conditions-in-planning-permissions-circular-11-1995

and the “National Planning Policy Framework” (paragraph 206);

https://www.gov.uk/government/publications/national-planning-policy-framework--2

and the “National Planning Practice Guidance” (Use of Planning Conditions Section, parts 2 & 3);

http://planningguidance.planningportal.gov.uk

Whilst this is very useful in formulating an argument to expunge or amend the contentious condition unfortunately “Greater flexibility” clearly shows there is no statutory definitions for “non-material” and “minor material” conditions, which I find understandable, as the eventual decision will be a matter of “fact and degree”. However, I have been unable to find an authoritative document that sets out what tests must be applied whether a condition is “non-material”, “minor material” or indeed, material. Does one exist? 

My own council have no information or policy guidance, whatsoever, on their website and enquires with the duty planning officer have resulted in vague, non-comital responses. Reference to other council websites shows a great deal of variation in their definitions and guidance.

I am seeking to argue, in my case, it is a “non-material” condition, as it seems to me that:

1.   it is against public policy, as evidenced by the last three documents above and should    not have been made; 
2.   is ultra vires - and consequently, if it was beyond their legal authority to impose such a condition, then it is, per se, “non-material”; 
3.   if I make a “minor material” amendment by way of Section 73, then the council can revisit the scheme as a whole and virtually treat it as a new planning application. They are empowered (and possibly required) by Article 13 of DMPO

http://www.legislation.gov.uk/uksi/2010/2184/article/13/made

to give notice to neighbours etcetera (I have a cohort of ‘professional’ objectors nearby) and of particular concern, is that they have to issue a new decision notice, which means they will able impose different conditions, such as an Article 4 notice. (I realise that they can impose new conditions via Section 96A, but think this less likely as I can’t trace a notice where a new condition has been imposed): and

(d)   the determination period for a Section 96A application is 28 days, whereas for a Section 73 it is eight weeks (and my council took 15 months & 2 days to refuse the initial application - which is absurd for rear extensions on a pair of semi’s).

So any help in identifying authoritative source of the meaning of “non-material” and “minor material” conditions would be helpful. 

I find it unsatisfactory that there appears to be an absence of proper guidance in this, as looking at various council websites, there will clearly be inconsistency in application.

It also seems absurd that according to paragraph 54 of “Greater flexibility” such applications should be determined in 28 days (although I can find no legal authority for this) yet there is no appeal mechanism, for non-determination or refusal, to the Planning Inspectorate. 

I realise I could appeal the initial decision to the Planning Inspectorate but I feel I would need a planning consultant or lawyer to do this properly, which is expensive and also there is the time factor. An application to the council to invoke Section 97 is likewise unsatisfactory as I think my council would simply refuse unless I had the leverage of a specialist lawyer and it would have to go to the Sec. of State for approval, very time consuming I imagine.

So any comments would be helpful.

To Louise, I apologize for the long digression from the original post, but to go back to that query, I have recently come across a few decision letters concerning Section 96A in my research/preparation. Here is one of the better ones I have seen:

http://www1.surreycc.gov.uk/mwplan/siteattachments/Decision%20Notice%20WO2013-0470.pdf

I think this fits in very well with what Paul has suggested, and for what my my opinion is worth, I think he is correct. My criticism of the notice is the wooly, vague “Reason”. It would surely not be acceptable on a Planning Decision Notice, as it would be contrary to Paragraph 10 of Circular 11/95 (ibid.), so why have it on a notice that effectively amends a Decision Notice. As it says in paragraph 89, there should be “scrupulous care in the giving of proper, adequate and intelligible reasons”. Also some of the better approval letters state what Local Development Framework Policies have been considered in deciding the application. I consider this good practice; if is helpful for applicants to know the grounds for the decision and might silence neighbours who make constant complaints to enforcement officers because they object to a scheme ‘in my backyard’.

I have seen better, but it was a few days ago and I can’t find it now. I think they suggested in the Informative that a copy of the notice should be attached with all copies of the decision etc. and that the notice did not give any additional approval which may be required by Building Regulations, Party Wall Acts etc. etc.

I have yet to come across any refusal notices. I think you would need to consider the Informatives for these in line with the suggestion for Planning Decision notices in 11/95 to state the action the applicant can now take. As he has no appeal rights, other than to the High Court, there is not a lot to be said perhaps, other than the grounds for refusal. If a refusal were likely, I would be inclined to try and get the applicant to withdraw and advise him to appeal direct to the Planning Inspectorate, and if out of time for that, suggest a new application under s.73, which could be refused so he or she could appeal that, or submit a new application, which might be problematic if the works have started - I imagine a lot of applications would be submitted as a result of structural calculations, building control, 10 year warranty and Breeam requirements  etc.

If your council were to adopt the provisions of s.96A, and quiet frankly I fail to see why you have not, since it has been law since October 2009, I hope you find authoritative list of the parameters that are to be considered, as you will need it for your own protocols and also to advise potential applicants. I have been amazed by the disparity of different councils. Some will not consider in a Conservation Area; whilst others will: Some only allow one application under 96A; others multiple: Some allow no increase in volume or footprint; others allow using phrases such as ‘slight’ and a couple of times I have seen an increase 6% of volume and 3% of floorspace being within parameters (I would be interested to know how those figures were arrived at - probably one council copying the policy of another): some do not allow the building to be re-sited; others undefined ‘close proximity’ to neighbours or complicated lists concerning how close it to the boundary and/or neighbouring buildings. The list could go on and on, and the disparity is significant. 

There is also the protocol that would be needed for Mineral Extraction and Waste Disposal Operations - but I can't comment on that.

Best wishes, Brian.

Hello Louise,

Just a thought - Is your LA in Wales? As far as I could see, Section 96A has not beenenacted there yet. I have no idea about Scotland. They seem to have the same legislation but for some reason use different section numbers and Act titles.

Brian.