Minor material amendments
Protocol for minor material amendments following a grant of planning permission (2011)
With effect from 1 October 2009 amendments to planning applications must now be dealt with by way of a formal application for either a “non-material amendment” or a “minor material amendment”.
The council should therefore no longer accept requests for minor amendments by letter alone, but only on the correct application form. Any amendment that cannot be treated as a “non-material amendment” will require a new freestanding planning permission, either by way of a “minor material amendment” to an existing planning permission or by way of a new planning application.
The government has advised that applications for "minor material amendments" should be made by way of a variation of condition application. Such applications must therefore be made by completing the standard ‘Variation or Removal of Condition' application form.
Applications will require accompanying plans clearly showing the differences between the approved scheme and the proposed amendment.
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What constitutes a Minor Material Amendment?
Government guidance on ‘Minor Material Amendments’ does not define what changes may be treated as ‘minor material amendments’ although the government has confirmed that they “agree” with the definition proposed by WYG (White Young Green Planning and Design): “A minor material amendment is one whose scale and nature results in a development which is not substantially different from the one which has been approved”. This is not however a statutory definition.
It is therefore the responsibility of each local planning authority to determine the definition of ‘minor material’. This guidance sets out how Ealing Planning Services will deal with minor material amendments, for applicants and their agents, as well as other interested parties, including neighbours, to understand the basis for any decision.
A judgement on “materiality” in any particular case is one of fact and degree, along with taking into account the likely impact of the amendment on the local environment. Materiality is considered against the development as a whole, not just part of it. The basis for forming a judgement on materiality is always the original planning permission. The cumulative effects of any previous amendments need also to be assessed against any original permission.
There cannot be a set of prescriptive rules to what is or is a minor material change, as each case is different and considered on its individual merit. This is a matter for the local planning authority to decide. The following protocol has been devised to clarify the process for determination as well as setting out the procedure involved.
Section 96A of the Town and Country Planning Act 1990 states that “in deciding whether a change is material, a Local Planning Authority must have regard to the effect of the change, together with previous changes made under this section, on the planning permission as originally granted.”
Criteria for assessing minor amendments
The key tests as to the acceptability of a change to an approved scheme under the Minor Amendment procedure are:
- Is the proposed change material/significant in terms of its scale (magnitude, degree etc) in relation to the original approval?
- Does the proposed change modify any use the development originally approved?
- Would the proposed change result in a materially detrimental impact either visually or in terms of amenity?
- Would the interests of any third party or body who participated in or were informed of the original application be disadvantaged in any way?
- Would the amendment be contrary to a any relevant development plan policy?
- is the proposed change contrary to a retricitve condition on the original approval?
- Would there be significant increases in site coverage, height of building or site levels?
- Would there be additional and/or repositioned windows/doors/openings that will have an impact on neighbouring properties?
- Would there be any change to the external materials which would adversely affect the character or appearance of the development or erode the quality of what was originally approved?
- Would the amendments reverse design improvements secured during the processing of the original application?
- Would there be increased impact on existing trees or any proposed landscaping scheme?
- Would there be any alteration to the application site boundary (red line)?
If none of these tests are positive, then a proposal is likely to be appropriatee to be dealt with as a 'minor amendment', though each request will be considered on its merits having regard to all relevant circumstances.
Listed buildings and conservation areas
The provision for minor material amendments outlined in this protocol only relates to planning permission. There is no equivalent scheme in place for changes either to listed building consent or conservation area consent. For these, the works must be carried out strictly in accordance with the approved scheme or a new application submitted.
How will my application be processed?
The development which the application under the section 73 application seeks to amend will by definition have been judged to be acceptable in principle at an earlier date. These applications will therefore be determined in accordance with section 38(6) of the Planning and Compulsory Purchase Act 2004 (which reiterates the duty originally imposed under section 54(A) of the Town & Country Planning Act 1990 and requires that all decisions must be made in accordance with relevant Development Plan Documents unless other material planning considerations indicate otherwise), but local planning authority’s should, in making their decisions, focus their attention on national or local policies or other material considerations which may have changed significantly since the original grant of permission, as well as the changes sought.
Is consultation necessary?
The government has confirmed that local planning authorities have discretion to decide which statutory consultees listed under article 10 of the General Development Procedure Order should be consulted when a section 73 application is received.
It is indicated that local planning authorities should take a proportionate approach to consultation. In deciding which bodies to consult, they may wish to take into account which statutory consultees had a particular interest in the proposal, or raised concerns about it, at the time of the original application.
With regard to other consultation/publicity/notification requirements these are unchanged. Where these give local planning authority’s discretion, a proportionate approach should be adopted, taking into account that there will have been full consultation when the original permission was granted, and that the variation may have an impact only on limited groups
The government has confirmed that where an application under section 73 is granted, the effect is the issue of a fresh grant of permission. A decision notice describing the new permission should be issued, setting out all the conditions pertaining to it. As a section 73 application cannot be used to vary the for implementation, this must be consistent with the original permission
Where other conditions imposed on the original planning permission have been discharged then amended conditions should be imposed detailing this fact. For example, where the external materials to be used for a development have already been agreed then a condition along the lines of:
All external materials to be used in the development shall be as agreed under application reference P/xxxx/xxxx, as approved by decision notice dated xx/xx/xxxx.
REASON: To ensure that the materials harmonise with the surroundings, in accordance with policy 4.1 of the adopted Ealing Unitary Development Plan, 'Plan for the Environment' (2004).
Remember that if details have been approved but the development has not been carried out then it will be necessary to include a requirement that the development should be carried out in accordance with the previously approved details before any relevant trigger date (commencement, occupation etc) in any new condition.
If any new issues arise that were not material considerations in the earlier decision but could be the subject of an appropriate condition now then new conditions can be added to any decision as long as they meet the tests laid down in circular 11/95: Use of conditions in planning permission.
Where the existing planning permission that it is sought to vary does not contain a planning condition detailing the approved drawing numbers it would also be possible to apply to add a condition listing plans under section 96A of the Town & Country Planning Act 1990 (the non-material amendments procedure).