Variation to add plan reference as immaterial planning condition followed by application to vary those plans resulted in new scheme permission

Section 96A of the Town & Country Planning Act 1990 enables a local planning authority to change an existing planning permission where the change is not material.

This includes the power to remove or alter existing conditions and to add new conditions.

This provision is great for developers as the authority must decide the application within 28 days or such longer period as the applicant agrees and the local planning authority need not publicise or consult on the application.

Where an existing planning permission exists it is also possible to apply to change its conditions under Section 73 of the Town & Country Planning Act 1990. This is not as advantageous as the procedural rules are as onerous as a normal planning application

In Daniel, R (on the application of) v East Devon District Council & Anor [2013] planning consent had been granted in 2008 for a scheme for the demolition and replacement of a sea front café. This had stalled due to the developer’s inability to secure the extra land needed.

The developer applied in 2010 for a reduced scheme but planning consent was rejected in 2012.

Instead of appealing or applying for a totally new planning permission the developer built on the successful precedent set by the 2008 planning consent.

Though the land was insufficient he kept that permission alive by starting work on what land he had.

He applied under Section 96A to vary the 2008 consent to add an extra condition 7 requiring the development to be carried out in accordance with the original plans which were listed in the condition.

Having obtained the addition of that condition to the 2008 permission he applied to the local planning authority under Section 73 to vary the condition to refer to fresh plans detailing a cut down scheme. That application was successful.
Section 73 operated to leave the original 2008 permission in place but granted a new 2013 permission with a reworded condition 7

The actual case of Daniel, R (on the application of) v East Devon District Council & Anor [2013] arose from a judicial review application by a local person which sought to challenge details of the process here not least by alleging that the council officer had wrongly directed the committee to place no or insufficient weight on a material consideration – namely the 2012 planning refusal.

The court rejected those allegations and the other factual grounds.

As usual this blog is posted out of general interest. It does not replace the need for proper legal advice in individual cases.