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Non-material Amendments: Simple but Effective

Helen Ashby-Ridgway 30 Apr 2013
There can be little disagreement that the Coalition Government’s main message for the planning system is to maximise opportunities to simplify and improve processes, in order to get Britain building faster and sooner so as to assist economic recovery.
The Government is undertaking major reforms to the operation of the planning system. Perhaps most well-reported has been the publication of the National Planning Policy Framework (NPPF) in March last year. This transformed more than 1000 pages of national planning policy into less than 50. From our research, NLP has found that the NPPF has resulted in significant increases to the number and scale of approved residential development proposals at appeal stage (see link); much welcomed news for the house building industry and for measuring the outcomes of the Government’s objectives.
It has not stopped there. There have been numerous less well-proclaimed changes that have also been introduced in the intervening months – from prioritising major developments in appeals, to reducing the level of information required for outline applications. Many more are in the pipeline.
It is in this context that it is useful to review whether the ‘simplifications’ made to the planning system to date have proved successful or not.

Non-material Amendments

In 2009, the introduction of Section 96A into the Town and Country Planning Act 1990 (as amended) provided the ability to make non-material amendments to planning permissions. It was introduced as a package of changes to allow for ‘greater flexibility’ to amend extant planning permissions without the need to submit a brand new, full application – putting it simply, measures to help schemes to be delivered and save time and money.
The Section 96A process is straightforward. If the change being proposed, to a permission or to the details of a condition attached to a planning permission, is not a material change to the permission, a simple application setting out the amendment, with revised plans if necessary, is submitted. The target for determination by the LPA is 28 days and the amendment is confirmed formally in writing.
At this time, the Section 96A route is only available in England. However, the Welsh Government (WG) has recently undertaken a consultation on whether it should be introduced in Wales. This has provided NLP with a suitable opportunity to reflect upon the operation of Section 96A and whether it is delivering its intended outcomes. Our review was reported to the RTPI Cymru Policy and Research Forum and incorporated into RTPI Cymru’s formal consultation response to the WG.
So how does the theory translate into practice? All of NLP’s planning teams were asked what they thought of the non-material amendment process. There was resounding support. In particular our experience reveals that:
a) It provides an extremely helpful tool for developers and local planning authorities (LPAs) to make formal, non-material amendments to planning permissions by an efficient means;
b) It provides consistency in approach between LPAs and provides clarity on the legal position of non-material amendments to planning permissions;
c) There is generally very good awareness of process and procedures by LPA officers;
d) The 28 day target determination date is usually met;
e) There have been no issues resulting from a lack of precise definition of ‘non-material’;
f) It is a mutually beneficial process to ease workload and costs for all parties concerned;
g) There are no onerous information requirements for making an application – the applicant only has to submit what is required to reflect the nature of the amendment. There have been no disputes with LPAs on the level of information provided; and
h) There have been no issues arising regarding the lack of statutory consultation built into the process.
Overall, NLP considers Section 96A a very sensible approach that has resulted in very few practical problems. As such, developers are able to quickly receive agreement to the almost inevitable changes resulting from the design review process following the grant of planning permission. This gives them comfort to agree such changes without the risk of enforcement action at a later date. Further it also means that there is no need to prepare and submit a planning application from scratch which requires the LPA’s full reconsideration of the proposal – with the potential for refusal and a missed opportunity to build towards much needed economic activity.
As ever, there are still opportunities to improve on the Section 96A process; there are a few clarifications that should be made:
  1. The information to be included in a written decision should be specified in the ‘Greater Flexibility’ guidance, to ensure consistency in decisions between LPAs;
  2. There is ambiguity in the 1990 Act as to whether Section 96A applications can apply to reserved matters approvals. The wording refers to ‘planning permission’. From our experience, many LPAs in England accept such applications.  But we have come across occasions where they have not. We are clear that there should be the same efficiency and pragmatic approach for reserved matters approvals as there are for outline and full permissions.
  3. It appears that once a Section 96A decision has been issued, the developer has no option but to implement the amended decision. This is in comparison with Section 73 approvals where either the original or the revised permission can be implemented. There are merits to both approaches but overall, our view would be that a similar level of flexibility for Section 96A-amended permissions should be built into legislation.
  4. It would also be helpful if LPAs had a consistent approach to recording NMAs on their planning registers. At present some LPAs do not do so, meaning for example that these investigating permissions may not see the details of the financially approved scheme if they are reliant on the register.
Notwithstanding these few points, a relatively straightforward addition to planning rules has given brought tangible benefits to the development industry and LPAs alike, and NLP fully encourages WG to amend  legislation to introduce a similar addition in Wales as soon as possible.
It is clear from the 3 years since the introduction of Section 96A that a simple change to the planning system can have positive outcomes.  NLP welcomes in principle any further changes that can achieve similar results.