Following the introduction of the Levelling-up and Regeneration Bill on 11 May 2022, proposed changes suggest a new provision with regards to how planning permissions may be varied or amended.
There are presently two routes for varying / amending a planning permission. Sections 73 and 96A both enable applicants to vary planning conditions. Section 96A also permits the variation of the description of a planning permission.
Section 73 permits ‘minor material changes’; case law has established that the approved change should not result in a fundamental alteration to the initial planning permission.
Section 96A permits ‘non-material changes’ and, although there is no case law on the point, these are typically accepted as inoffensive fenestration changes and the like.
A main difference between the two existing routes is that a Section 73 results in a new planning permission being granted – this can be implemented instead of the existing permission. It also results in CIL concerns. However, Section 96A does not.
The benefit of a variation is that a new full or outline planning application is not required, removing the risk, time and cost constraints associated with that process as the Local Planning Authority would not have to fully reconsider the policy issues. Generally, variation applications are quicker and cheaper.
While these current provisions are regularly used by applicants, the Bill suggests that they are confusing in nature and proposes a new procedure.
New proposal
The Bill suggests that this new amendment would offer further flexibility through new provisions to grant planning permission for development which is ‘substantially the same’ as an existing planning permission. But what does this mean?
The explanatory notes of the Bill indicate that this would encompass the existing powers in place through the amendment of both planning conditions and the descriptions. In short, this would avoid the need for both Section 73 and 96A applications to seek the same change and, in theory, streamline the process. The Bill proposes that the Local Planning Authority’s consideration in these applications is limited to how the proposal differs from the existing permission, which could limit the scope for wholesale reconsideration of the planning merits of the scheme. Seemingly this is not a variation or amendment, but a new permission granted which is substantially similar to an existing permission.
Whilst, in theory, the streamlining of such a process would assist with easing the relatively complex process in place, there are question marks surrounding the interpretation of ‘substantially different’ and how this differs from the existing provisions. The Bill notes suggest that this interpretation will be determined by the Local Planning Authority, which seems to fall squarely within their planning judgment. Applicants may prefer to stick to existing known provisions for certainty, particularly since amendments are often sought during the build stage when issues arise needing regularisation.
Notably, this provision is not to apply to either planning permissions granted under Section 73 nor retrospective planning permissions. It cannot be used to extend the implementation period of a planning permission nor submission of reserved matters.
Conclusion
At these early stages of the Levelling-up and Regeneration Bill, it is clear that a non-substantial amendment could become a potential alternative to the existing Section 73 and Section 96A routes that are available.
The prospect of a streamlined route to vary planning permissions through a non-substantial amendment could serve as a useful tool within the planning process, however, the definition of what non-substantial changes are is something which is yet to be clearly defined and would likely lead to a range of varied interpretations which could lead to low uptake by applicants.
