City of York wins appeal over planning permission amendments

Out-Law News | 07 Aug 2019 | 9:58 am | 1 min. read

The City of York council has won a Court of Appeal (CoA) case ruling that the powers which allow local planning authorities (LPAs) to make non-material changes to planning permissions can also be used to make non-material changes to a reserved matters approval.

The CoA dismissed the appeal brought by Fulford Parish Council, which argued that section 96A of the Town and Country Planning Act 1990 (TCPA) did not allow the city to make non-material changes to a reserved matters approval.

Planning expert Victoria Lindsay of Pinsent Masons, the law firm behind Out-Law, said: “This is a really helpful judgment both for developers and local authorities – up until now it was unclear whether or not you could lawfully use an application for a non-material amendment to amend reserved matters already approved.

“We were advising clients to be cautious given the ambiguity in the wording of s96A but this opens the door to a quicker, and cheaper, solution in many cases without the need for re-submission of reserved matters. The judgment does not assist in what would be considered to be ‘non-material’ and therefore using s96A still depends on having a willing and helpful local authority to accept changes as non-material given there is no right of appeal,” Lindsay said.

The City of York council had approved planning permission for a residential development in Fulford, and had gone on to grant approval of reserved matters including a ‘bat mitigation strategy’, which would protect bats flying over the development. That strategy was also later approved, and in 2018 the LPA gave the green light to a non-material amendment to the bat mitigation strategy.

In its judgment the CoA said there was a distinction between the planning permission and the later approval of reserved matters. It dismissed Fulford’s arguments that the statutory power in the TCPA was limited to making non-material amendments to a planning permission, and found that there was a clear distinction between the planning permission and later approval of reserved matters.

The CoA said section 96A allowed for non-material alterations of existing conditions, and noted that a change in approved reserved matters would have no material impact on the planning permission. It said as the bat mitigation strategy was yet to be fully put in place, the power was not being used retrospectively, particularly as the whole of the development had not yet been carried out.