PLT Masthead 430

Masthead Housing - Planning

Material or non-material?

Checklist 2 146x219Martin Edwards examines the difficulties around a local planning authority's power to approve non-material amendments to planning permissions.

Section 96A was inserted into the Town and County Planning Act by section 190(2) of the Planning Act 2008 with effect from 1 October 2009. It empowers a local planning authority to approve "non-material" amendments (NMA) to planning permissions that it has granted.

In so doing, the local planning authority "must have regard to the effect of the change, together with any previous changes made under this section, on the planning permission as originally granted" (see subsection 2).

This gives the local planning authority a considerable degree of latitude that is not without its problems especially as there are several noteworthy features of the NMA application process:

  • Unlike an application under section 73, a successful NMA does not result in a new planning permission but amends the original planning permission
  • There is no statutory definition of "non-material"
  • It is a relatively informal and quick process
  • There is no requirement on the local planning authority to publicise or undertake consultation with any person about the application

In March 2015, Angmering Parish Council secured the adoption by Arun District Council of the Angmering Parish Neighbourhood Plan. It is now part of the statutory development plan for the purposes of section 38(6) of the Planning and Compensation Act 2004.

In February 2017, Arun District Council granted outline planning permission for a 53-unit residential unit care facility comprising 45 two-bed and 8 one-bed care apartments on land at Angmering. The Parish Council objected to the application on a number of grounds including conflict with policies in the development plan and density. The density of the development was stated to be 43 dwellings per hectare. However, in January 2014 Arun's Development Control Committee had refused outline planning permission for up to 27 x two-bed age restricted cottages, a 60-bed care home. The density of the development was stated to be 67 dwellings per hectare.

In May 2017 the applicant then applied under section 96A for approval of what it considered to be a non-material amendment to the permission. It related to one block and replaced 24 apartments with a 70-bed care home therefore resulting in permission for 29 care apartments and a 70-bedroom care home. The Parish Council argued that this was similar in effect to the scheme that Arun had refused in 2014 and the resulting density would increase from 43 dwellings per hectare to 76 dwellings per hectare.

The Parish Council was not notified of, or consulted about, the NMA application. It was also not notified of the decision but discovered by chance that it had been made and approved by officers under delegated powers. The Parish Council was also unable to locate any written record of the officer's decision-making process or reasons other than the decision letter granting the NMA. Despite this, there was still time for the Parish Council to mount a judicial review of the NMA.
On receipt of the application for judicial review, Arun conceded that the NMA should be quashed on the grounds that:

  • The amendment was not non-material and required a planning application and, according to its Constitution, should have been taken by Arun's Development Control Committee rather than under delegated powers
  • The officer taking the decision under delegated powers failed to comply with the Scheme of Delegation in that a written record was not produced as required by its Constitution
  • By failing to produce a written record of the decision, Arun was also in breach of regulation 7 of the Openness of Local Government Bodies Regulations 2014

A copy of the consent order can be found here.

Martin Edwards is a barrister at Cornerstone Barristers. Instructed by Heidi Copland and Chloe Karamian of DMH Stallard, he acted for Angmering Parish Council.

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