What is a non-material amendment – or section 96?

Trainee planning solicitor, Bronwyn Jenkins, takes a look at non-material amendments in planning law.

Last month, planning law solicitor Jo Lilliott, wrote an article on the Supreme Court judgment in the case of Hillside Parks Ltd and Snowdonia, National Park authority.

Summarising, the Supreme Court ruled that when a subsequent planning application is made for a development site, so far as it makes the original application physically impossible to implement, the earlier permission can no longer be relied upon.

However, as summarised by Jo, non-material changes from the earlier permission may not be fatal to the continued implementation of that earlier planning permission.

But what is a non-material amendment?

Some commentators have noted that this aspect of the judgment could be likened to a non-material amendment under section 96 of the Town and Country Planning Act 1990 (NMA) – in which Local Planning Authorities (‘LPA’) have the power to agree to changes to a planning permission relating to land in their area where they are satisfied that the change would not, in effect, result in the implementation of a different planning permission. This includes the power to impose new conditions or to remove existing ones.

Despite this, and somewhat inconveniently for people wishing to apply for subsequent planning applications, there is no statutory definition of a non-material amendment, or NMA. Rather, the relevant LPA will consider each case in turn and make their decision on a fact-by-fact basis, regarding the wider context of the planning application. Indeed, an amendment that is non-material in one context may be material in another.

In deciding whether a change is material however, the LPA must have regard to the effect of the proposed change, as well as any previous changes made to the planning permission.

Some examples of changes which may be considered non-material are:

• Minor variations to what was described in the planning permission
• Changes which do not conflict with any conditions of the planning permission
• Changes which do not breach planning policy

If your proposed changes are more than a non-material amendment, you will then need to consider making a different application, potentially for an amendment under s73 of the Town and Country Planning Act or otherwise, a new application for full planning permission.

Specialist advice on non-material amendments

NMAs can be a very helpful tool for someone wanting to make amendments to a planning permission. Holmes & Hills have a specialist team of planning law solicitors who regularly advise upon issues pertaining to planning permissions and the correct legal approach to variations thereto. If you are in any doubt about what constitutes an NMA, or need any other planning law advice, please get in touch.