Court of Appeal Judgment shines a light on a grey area of planning legislation
At last, a landmark Court of Appeal decision (Fulford Parish Council, R v City of York Council [2019] EWCA Civ 1359) has provided clarity on the matter.
It has long been a frustrating conundrum for planning professionals and developers alike. You’ve been through the lengthy and often challenging process of securing an outline permission, followed by a further application for Reserved Matters before you can even think about getting a shovel in the ground. What if, through end user preferences, design evolution or financial changes, you need to make some small changes to your scheme? That shouldn’t be a problem, should it?
What is the current situation?
With a full planning permission, it is possible to submit an application under Section 96A of the Town and Country Planning Act (1990) to make a non-material amendment to a planning permission. Submitting a Section 96A application is generally a pain-free process involving a 28-day determination period, no requirement for statutory consultation and minimal costs and workload. Job done.
If you’ve gone for the two-step approach (outline permission and the Reserved Matters approval), the process is not so simple. Without delving too deep into the legislation, whether or not Section 96A applications can be made on Reserved Matters approvals has been for some, a grey area, and for others a simple no. Whilst some LPAs will accept and approve 96A applications on Reserved Matters approvals (and such pragmatism may very well be applauded), some argue that a Reserved Matters approval is not a ‘planning permission’ by definition and therefore the legislation does not allow a 96A application. The latter, more cautious approach is even more likely to be taken when dealing with large developers with legal teams / advisors keen to avoid any risk of legal challenge and issues arising through the process of land purchase and the sale of homes and buildings.
So what's changed?
At last, a landmark Court of Appeal decision (Fulford Parish Council, R v City of York Council [2019] EWCA Civ 1359) has provided clarity on the matter. Fulford Parish Council (taking the position that a Reserved Matters approval is not a ‘planning permission’) launched a legal challenge against York City Council’s approval of non-material changes to Reserved Matters approvals pursuant to an outline permission for 700 homes.
The Court concluded that Section 96A does include the power to change Reserved Matters approvals in a non-material way, with the Judge stating:
“An application for an amendment to an approval (or conditional approval) of reserved matters is, in my judgment, an application for the alteration of an existing condition; which is expressly permitted by section 96A (3) (b). The power under section 96A is restricted to non-material changes. It follows that a change in approved reserved matters can have no material impact. In those circumstances, I can see no policy objection to this interpretation.”
What does this mean?
This welcome decision sets an important precedent and offers a handy piece of evidence for developers and planners facing battles over a tricky piece of planning legislation. The ruling essentially confirms that it is lawful to make changes to a Reserved Matter permission through Section 96A, something which was previously very unclear. It will hopefully encourage more LPAs to take a pragmatic (and time-efficient approach) and treat non-material changes to Reserved Matters the same as they would full applications. It also gives more certainty to developers and their legal advisors.
Want to read the full decision?
Please click here to read the High Court decision.
