In R (Fulford Parish Council) v York City Council [2019] EWCA Civ 1359 the Court of Appeal confirmed a point of law that many practitioners might have though had already been settled: that section 96A can be used to effect a non-material amendment to a reserved matters approval.
The facts of this particular case aren’t important save to say that a planning authority allowed a change by way of a non-material amendment and a third party challenged the lawfulness of that action.
Section 96A
The challenge was based on the premise that section 96A refers specifically to a power to make a change to “any planning permission” and the accepted position that an application for the approval of reserved matters is not an application for planning permission and so the approval of that reserved matters application cannot therefore be a grant of planning permission.
Looking pragmatically, if a full/detailed planning permission had been granted, there would have been no question that the power in section 96A would have applied to all elements of the permission granted. In effect, the Court asked itself where was the evidence of Parliament having an alternative purpose in respect of a reserved matters approval such that, for example, the colour of bricks required by condition on a full planning permission could be changed through a non-material amendment whereas the colour of the same bricks couldn’t/shouldn’t be changed where the relevant condition had been imposed through a reserved matters approval.
The Court
The way that the Court expressed its reasoning was that:
“the conditional approval of reserved matters is itself a condition subject to which the planning permission has been granted.”
This must be right, since reserved matters approvals are only sought and granted because of the requirement of a condition on an outline planning permission to do so. This was supported by the earlier High Court judgement in Pressland v Hammersmith & Fulham LBC [2016] EWHC 1763 (Admin) where it was noted that:
“Planning permissions are granted subject to such conditions as may be imposed when either the permission or any subsequent required approval is granted.”
The Outcome
The case was made by the third party that changes under section 96A deprive the public of an opportunity to participate in the decision making process. However, whilst that can undoubtedly be true (if the planning authority decides not to so consult) that is not a reason for treating a full planning approval and a reserved matters approval differently. The Court also noted that section 96A was only available in cases where the planning authority has already decided that the change proposed would, if allowed, be non-material and therefore the need for such public participation was not so pressing as to change the view of the Court.
For the practitioner, this is undoubtedly good news to have confirmed the availability of the non-material amendment procedure, regardless of the route taken to the approval being amended.