Hooray you’ve secured your planning permission; it’s in the bag, and the celebrations done and dusted. You’re building out the approved scheme but now, in the immortal words of the late, great David Bowie, you want to make some “Ch-Ch-Ch-Changes”. Whether big, small, complex or straightforward, you’ll need to formalise these because your development can only be implemented in accordance with the approved plans and any attached conditions – it won’t be valid otherwise.
There can be various reasons for changing a scheme post-consent: cost, design evolution and refinement, shifts in the market or just personal preferences. However, it isn’t always a straightforward process so think carefully about whether it’s really necessary before you plough on.
If it is, then there are various means of altering a consent, all of which require the submission of a further application, in some form. Depending on the type and scale of change, this can involve a completely fresh new full application; a Section 73 application for minor-material amendments; a Section 96a application for non-material amendments; or an application to discharge conditions (this latter option being a little-known but useful mechanism for securing changes to listed building consents). Taking a look at these in turn:
Submit a fresh new application
If your proposed changes fundamentally or substantially alter the substance of your approved scheme, you will need to submit a fresh application. Whilst the principle of development has already been established, this new submission will still be determined on its merits and considered against any other changes that may have taken place since the original permission was granted, such as shifts in local or national policy.
If approved, this will give what you want in a pretty straightforward way. But it will be a relatively time consuming and expensive process. You will need to cover consultants costs; you may want to go through a pre-app process to ensure the changes are still acceptable (to stakeholders and neighbours as well as the LPA); you will incur another full application fee (unless you submit within 12 months of the original determination date and the applicant, site and description are unaltered – and even then you only get one free-go); you will be subject to full determination timescales again; and, quite critically, you might be subject to additional CIL costs and planning obligations.
Minor-material amendments – use a Section 73 submission
Section 73 applications are an appropriate mechanism for securing ‘minor material’ amendments to an approved scheme – they are essentially small scale changes. It works by altering a condition attached to the original planning permission, to reference any ‘changed’ plans. So there must be a list of approved plans and documents attached to your original decision in the first instance in order for it to be altered. If there isn’t, then you can use a Section 96a application process (read on) to first attach this, and then use the Section 73 process to amend it (sounds more complicated than it actually is).
There is no formal definition of a ‘minor material’ amendment, it’s very much at the discretion of the relevant LPA and as such can vary between them. However, it generally includes any changes that are not substantially different to the original planning permission, so an LPA would be looking at significant differences in scale, site coverage, building heights, site levels, changes in use, changes in appearance and any new environmental, aesthetic or amenity impacts.
Any amendments would also be considered against Local Plan policy and against any restrictive conditions on the original permission. They would also be scrutinised if they reverse any design improvements secured in the first scheme, or involve any tweaks to the application site (red line) boundary.
Once granted, a Section 73 consent sits alongside the original permission which remains intact. So, you can implement either scheme (not both) but need to inform the LPA which one you will be pursuing. The new decision notice should replicate the relevant conditions from the original (unless these have been discharged), and some conditions will be reworded to reflect the newly approved plans. There is also the possibility that the LPA may choose to add further conditions as they see fit. So make sure you request a draft of these before the new decision notice is issued.
You should also be aware that the Environmental Impact Assessment (EIA) Regulations apply to a Section 73 application, as this is considered to be a new application for planning permission under the 2011 EIA Regulations. Where the development is listed under either Schedule 1 or Schedule 2 and satisfies the criteria or thresholds, you should request the LPA to carry out a new Screening Request and/or Scoping Opinion to determine if an EIA is necessary. If the original permission was EIA development then the LPA will need to consider if you should supplement the original Environmental Statement (ES) to satisfy the requirements of the Regulations. Whether changes are required or not, an ES must be submitted with a Section 73 application if the LPA considers it to be EIA development.
Finally, be conscious of timescale, as the Section 73 process replicates that of the original application. So, if this was a major or an EIA scheme, then the Section 73 submission would take 13 or 16 weeks respectively. Moreover, if there was a Unilateral Undertaking or a Section 106 Agreement attached to the original permission then you are obliged to provide a Deed of Variation to attach this to the new permission. Finally, the Section 73 route is only available to planning, and not listed building consents, which are dealt with below.
The Section 96a non-material amendment route
A Section 96a application is also known as a ‘non-material’ amendment. This does not grant planning permission in its own right, but is an amendment to the original permission which stands alongside, and is read in conjunction with, the original decision notice. This means that a decision under this mechanism cannot be appealed, nor can you appeal an LPA refusal to deal with this type of application if they consider the scope of the amendments are beyond ‘non-material’.
As with Section 73 submissions, there is no statutory definition for ‘non-material’. It’s probably a ‘greyer’ area than for the Section 73 process and is down to the discretion of each LPA. Essentially, non-material amendments are small scale changes that do not change the nature, description or overall quality of the original permission, do not result in an increase in the size, height, scale or volume of a building, have very little individual or cumulative impact on the overall scheme, and don’t conflict with relevant Local Plan policy.
The advantages of a Section 96a application is that the LPA is not obliged to reconsult and should determine it within 28 days of registration. So it’s a relatively swift and inexpensive option if the changes are small and insignificant. Again as with Section 73 applications, this process only applies to planning permissions.
The Discharge of Conditions option
Sometimes, the changes that you want to make can be dealt with through the discharge of a condition application, which can be a pretty simple way forward. You can also submit further applications to discharge conditions that have already been discharged if the changes are relevant to the condition and won’t be materially different or have a substantial impact on the approved permission.
As with all discharge of condition applications, this involves an eight-week process and if it looks as if this might linger you have the option of serving a Deemed Discharge of Condition Notice from week 6 or to ensure the LPA provides a decision within 14 days if beyond the 6-week point. Hopefully, if you’ve been working with the same case officer for some time you’ll have a decent rapport and will be able to discuss the proposed alteration up-front to see if this would be acceptable in the first instance.
Section 19 Applications – Revisit a Listed Building Consent
Section 19 of the Planning (Listed Buildings and Conservation Areas) Act 1990 can be used to make non-material and minor material amendments to listed building consents. These work in essentially the same way as the Section 73 mechanism, allowing you to vary or discharge conditions attached to a listed building consent. They can be used in parallel with either a Section 73 or a Section 96a application, or separately if the original application was only for listed building consent.
As per a Section 73, a Section 19 application serves to amend and/or replace conditions and approved plans, so will involve an eight-week determination process. However, where a Section 19 application is determined alongside a Section 73 application, it’s highly likely that it will follow the timescale of the latter (which may well be longer).
As with the Section 73 process, the Section 19 decision notice should replicate the relevant conditions from the original listed building consent and, where these have been discharged, will be reworded to require compliance with the approved plans. As always, there is a risk that the LPA can add further conditions, so make sure you request a draft up-front to double check.
SO these are all of your options for making changes to your planning or listed building consent. They might sound arduous, but there is usually a route through, and it is always worth securing necessary permission for them as you roll out your scheme, rather than just praying the LPA won’t notice! Do give us a shout if we can help with any of your amendments.