The latest battle of Fulford: non-material amendments

The Court of Appeal has considered the scope of the power to make a non-material amendment under s.96A Town and Country Planning Act 1990 and whether it extends to allow non-material changes to reserved matters approvals. Jonathan Easton reports on the outcome.

When Harald Hardrada and his army faced the northern Earls on the outskirts of York in 1066, the Viking king would have had no idea that nearly a millennium later the Courts would provide fertile ground for a battle of a very different hue. Persimmon Homes’ site at Germany Beck near York has given rise to a significant amount of litigation on a wide range of planning issues, including whether this housing site - granted planning permission by the Secretary of State in 2007 - was the site of the Battle of Fulford.

The most recent skirmish has seen the Court of Appeal being called upon to provide some much needed clarity in an area where different local authorities have taken different approaches. R (Fulford Parish Council) v City of York Council and Persimmon Homes (Yorkshire) Ltd [2019] EWCA Civ 1359 considered whether the power to make a non-material amendment under s.96A Town and Country Planning Act 1990 extends to allow non-material changes to reserved matters approvals. The local planning authority (City of York) had approved non-material amendments to house types approved through reserved matters and an amendment to a bat mitigation scheme originally required by a condition attached to the reserved matters approval. The Parish Council challenged those decisions on the basis that the scope of s.96A did not extend so far.

In Fulford the Court of Appeal approached matters in a practical and common sense fashion, holding that the ‘planning permission’ to which s.96A refers consists of a ‘package’. That package includes the grant of planning permission itself together with any conditions, whether those conditions were imposed when planning permission was granted or subsequently: i.e. this includes the approval of reserved matters, whether subject to conditions or not. Consequently, s.96A does include the power to change reserved matters approvals in a non-material way. In reaching this finding, the Court noted that it would be odd if Parliament had intended that it would be lawful to change, say, a house type if a ‘full’ planning permission had been granted originally but unlawful to approve the same non-material change if the same house type had been approved through reserved matters.

Importantly, and consistent with the Government’s obvious intention that s.96A should provide a practical and flexible means for developers to respond to changing circumstances, the Court also confirmed that it is lawful to apply for non-material amendments even after the period for submitting reserved matters has expired. 

Fulford is similarly notable for its confirmation that it is lawful to impose conditions on reserved matters approvals. This issue arose because the Parish Council made the bold submission that the Planning Acts do not permit conditions to be imposed at reserved matters stage. Local planning authorities and developers across the land can breathe a collective sigh of relief. 

The judgment is a fine example of judicial pragmatism and good common sense producing a result that Parliament plainly would have intended.

Jonathan Easton of Kings Chambers acted for City of York Council in the Court of Appeal.