Legal Viewpoint: Relief and despair in court ruling on scheme revisions

In 1066, King Harald Hardrada won the Battle of Fulford before being beaten by King Harold at Stamford Bridge. In 2007, planning permission was granted for up to 700 houses on the alleged site and battle resumed, this time between the developers and the local parish council.

The consent was in outline, with reserved matters to be approved and a significant number of conditions to be discharged. One of the conditions required approval of a detailed bat mitigation strategy. This was approved in 2015 and provided for a set of "hop-overs" - glorified trellises designed to encourage bats to cross roads at a safe height. In 2018, a non-material amendment to the strategy was approved under section 96A of the Town and Country Planning Act 1990, involving a change in the timing of provision of one of the hop-overs.

The parish council challenged the approval on the basis that section 96A could not be used to change the bat strategy. It argued that the section 96A power is limited to making amendments to a "planning permission" and that approval of reserved matters or a condition is not a planning permission.

In the Court of Appeal, Lord Justice Lewison dismissed the argument. He found that the reference to "planning permission" in section 96A has to be read to include the original grant of permission together with approvals of any conditions to which it was subject, whether the conditions were imposed at the time of the grant or subsequently. Accordingly, an application for an amendment to an approval of reserved matters or an approval of a condition is expressly permitted by section 96A(3)(b).

The judgment has three potential consequences. First, developers will breathe a sigh of relief. It makes clear that there is a mechanism for dealing quickly with matters approved under a condition without having to make a section 73 application and that, unlike the limits on revised reserved matters, there is no time limit for making the changes.

Secondly, and this will cause a sigh of despair, the ruling may limit the cases in which section 96A is used. The judge emphasised that section 96A is limited to genuinely non-material changes. He highlighted the relative lack of public consultation required as part of a section 96A exercise but found this acceptable because, and only because, proposed changes should not be material.

As a consequence, local authorities may be tempted to lower the threshold at which they treat a change as material. Ironically, the additional flexibility offered by the decision may be taken away by local authorities refusing to accept proposed changes as falling within the scope of section 96A – and there is no appeal against such a decision.

Thirdly, some charging authorities have insisted that a section 96A change has no consequence for Community Infrastructure Levy (CIL) purposes. One of the concerns expressed was that there was no mechanism to require an additional CIL payment if the floorspace or use has changed. They will now have to accept that a section 96A consent forms part of the planning permission and that an updated CIL liability notice should be issued, which could lead to an overpayment claim. Although CIL consequences should not affect the approach to what constitutes a material change, it may influence decisions.

All of this brings back fond memories of the days when planning officers simply exercised their discretion to allow variations to plans and approved details.

Case: Fulford Parish Council v City of York Council; Date: 30 July 2019; Ref: [2019] EWCA Civ 1359

Stephen Ashworth is a partner at Dentons UK & Middle East LLP. Associate Mark Child also contributed to this article.

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