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Have Finney and the coronavirus pandemic turned section 96A into a town and country planning superpower?

May 21, 2020

Summary

Progression of all stages of a development are likely to be challenging for the foreseeable future, particularly decisions around whether to implement valuable planning permissions that are due to expire during the pandemic period, or to let them lapse. Whilst the Government continues to consider the position, it is a quandary that has brought into focus questions about if and how planning permissions can be extended, which we discuss in this blog.   

Introduction

Whilst this blog is not coronavirus specific, it is prompted by discussion that has resulted from current circumstances – specifically whether, in the present absence of any emergency legislation like that passed in Scotland or any other measures/guidance around the extension of permissions, section 96A of the Town & Country Planning Act 1990 can be used to extend time limits on planning permissions.  This raises a broader question about the role and use of section 96A in the planning system, particularly in light of recent case law concerning section 73. 

In short, has section 96A been accidentally turned into a town and country planning superpower? 

Humble beginnings

The power in section 96A was introduced by the Planning Act 2008.  Its purpose was to plug a long-term gap in the statutory framework which had previously been filled by many local authorities adopting informal practices to ‘approve’ non-material changes to schemes by correspondence or other non-binding means.

Section 96A provides that a local planning authority “may make a change to any planning permission…. if they are satisfied that the change is not material”.  In determining whether a change is material, a local planning authority must have regard to the effect of the change and any previous changes made under section 96A to the original planning permission. 

The low key and generally non-contentious nature of section 96A is reflected by both the stream-lined application process (with shortened determination period and minimal publicity and consultation requirements) and the lack of significant case law concerning the power to date.  This contrasts sharply with section 73 of the Town and Country Planning Act 1990 which has the same application process as a new planning application and around which there is a large and seemingly ever growing body of case law.

The Finney effect

The Court of Appeal’s decision in Finney v Welsh Ministers [2019] was one of the cases covered in my previous blog.

Whilst Finney was a case about the scope of section 73, it has practical implications for the use of the power to make non-material amendments in section 96A.  As well as making it clear that section 73 cannot be lawfully used to amend the description of development, the Court of Appeal highlighted that section 96A is available to do this where the amendments are non-material.  Accordingly, the decision has put an increased onus on the use of section 96A in two different ways:

  • Firstly, as a direct replacement for applications that may have previously proceeded as section 73 applications. There is undoubtedly scope for this because the question of whether amendments are non-material or minor material – and therefore a matter for section 96A or section 73 respectively - is essentially a question of planning judgment subject to the usual public law limits.  Consequently, whereas pre-Finney the precautionary approach for some local authorities may have  been to require a section 73 application to be made in borderline cases, this is no longer necessarily the case; and
  • Secondly, as a means to facilitate the future use of section 73 to enable a scheme to be amended more substantively in a Finney compliant way. This involves using section 96A as a first step to amend the description of development on an extant permission so that a section 73 application can then be made to amend the scheme in a more material way without cutting across the description of development.

The consequence is the same in both instances - namely an increased use and reliance  of the power in section 96A. 

A power to change time?

And so to the question of whether section 96A can be used to extend the life of an unimplemented planning permission. 

This is a question prompted by the coronavirus pandemic and the pressing need for developers to explore how planning permissions that are due to lapse can be saved without implementation in the absence (at the time of writing at least) of any specific legislation or guidance around the extension of permissions in England during the lockdown period.  However it is ultimately a question that arises because of another of the limitations to section 73 -  the explicit restriction in section 73(5) that prevents  the use of this power to extend the time by which a development must be started.  Prior to the introduction of that sub-section by the Planning and Compulsory Purchase Act 2004, it had been common practice to use section 73 to extend the life of planning permissions by varying the time limit condition. 

Whether section 96A can be used to extend the life of an unimplemented permission is presently untested in the Courts.  The suggestion that it can seems to be based on the following propositions:

  • Section 96A explicitly includes the power to amend conditions;
  • Unlike section 73, there is no express prohibition on using the power to extend the time by which a development must be started; and
  • A small extension to the life of a permission would be a non-material change.

The first two points are, of course, correct but do not necessarily mean that section 96A can be used this way.  As for the last point, it is questionable whether any extension of time is really non-material – indeed, one could say that the difference between a planning permission being capable of implementation or having expired is pretty much as material as things get.  Conceptually it is also difficult to reconcile the idea that a power for non-material amendments is wider than the power for minor material amendments but, then again, what Finney reminds us is that the powers in sections 73 and 96A are different.

In a sign that the Government does not share the view that section 96A is an appropriate power to extend planning permissions, we understand that it is actively considering ways to extend planning permissions through changes to primary legislation, with the possibility the legislative amendments could be introduced before the summer recess. 

In the meantime, what is being mooted here would undoubtedly be a creative use of section 96A.  This alone suggests that, at this point in time, using section 96A in this way would be a tool for the brave.  However, if it does become common practice for section 96A applications to be used as a means to extend planning permissions, we can almost certainly expect this to be tested in the Courts at some point. 

Conclusion

As things currently stand, the power in section 96A is the only way to lawfully amend the description of development on an existing planning permission and that alone makes it a special power. 

Whether the ambit of the power extends to doing even more of what section 73 cannot – namely extending the life of planning permissions – is questionable at this stage, especially if the Government is considering further primary legislation to extend permissions, but what is striking about section 96A is that it is difficult to write about without also mentioning the shortcomings of section 73.  And this takes us back into the territory explored in my previous blog and underlines the need for the Government to provide clarity via a legislative change (and not just in a coronavirus context either). 

In the meantime, as the use of section 96A increases due to the limitations of section 73, we can perhaps expect the case-law on section 96A to expand as the limits of the power are tested. After all, as any accidental superhero will you tell you, with great power comes great responsibility.


BCLP has assembled a COVID-19 real estate, leasing and construction taskforce to assist clients with issues across various jurisdictions. You can contact the taskforce at: COVID-19RealEstateLeasing&Construction@bclplaw.com.   You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

This document provides a general summary and is for information/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Specific legal advice should always be sought before taking or refraining from taking any action.