Court of Appeal rules that Reserved Matters Approval can be amended by Section 96A

The Court of Appeal, in R (on the Application Of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359, has confirmed that the statutory power under section 96A of the Town and Country Planning Act 1990 to make non-material changes to a planning permission can be used to make non-material changes to conditional reserved matters approvals (RMAs).

Different Local Planning Authorities (LPAs) have held opposing views on whether section 96A can be used to permit non-material changes to RMAs. Some LPAs acknowledged the necessity for developers of outline schemes to make non-material changes to reserved matters approvals, in the same way that non-material changes can be approved for planning permissions. Other LPAs have, however, declined to permit non-material changes to RMAs, on the ground that section 96A permits non-material changes to “planning permissions”, but not expressly to RMAs.

This latter approach was the primary line of argument of Fulford Parish Council. As described in the judgment, the Parish Council was “bitterly opposed” to Persimmon Homes’ circa 700 unit residential development at Germany Beck, Fulford, York and pursued a series of unsuccessful challenges to the scheme. The Parish Council submitted that there was a distinction between a planning permission and an RMA, and cited that “…if you successfully apply for apples, you do not end up with oranges”, and accordingly argued the power under section 96A did not extend to RMAs as it is not a “planning permission”.

The Court of Appeal concluded that:

• The approval of reserved matters is not, itself, the grant of a planning permission and that an application for such approval is not, itself, an application for planning permission; but

• The “planning permission” to which section 96A refers is the “package” consisting of the grant of planning permission itself, together with any conditions to which the grant is subject. An application for an amendment to an approval, or conditional approval, of reserved matters is an application for the alteration of an existing condition, which is expressly permitted by section 96A(3)(b).

From a developer’s perspective, this is a positive outcome. It makes practical sense to be able to make necessary non-material changes to schemes as they evolve, particularly in the case of development consented in outline, where detail is often contained within the RMA. From a purely legal perspective, though, it is worth noting the Court is willing to look beyond the strict letter of the law to apply a practical policy-based solution. Following the recent decision of the Supreme Court in Lambeth v SSHCLG [2019] UKSC 33, the Courts appear to be growing bolder in making planning decisions based on preferred outcome, rather than on the strict letter of the statute.

The Court also reiterated that the power under section 96A is restricted to “non-material” changes, so such a change can (in the view of the Court) have no material impact, so there should be no policy objection to their interpretation of S96A. It is, however, worth noting that the term “non-material” change is not defined in legislation, and in practice is looked at on a case by case basis in the context of the relevant development. This means that what constitutes a “non-material” change in the context of a large development scheme could still be of significance and for objectors, contentious, depending on what the LPA is willing to approve.