Amending The Status Quo On Reserved Matters Approvals

Making amendments to details submitted as reserved matters on large development schemes can pose difficulties - until now there has been no specific authority that non-material amendments could be made to reserved matters approvals (RMAs), although it has frequently been done in practice. A recent Court of Appeal decision, R (on the application of Fulford Parish Council) v City of York Council [2019] EWCA Civ 1359, has the potential to make things a lot more straightforward, providing authority both for non-material amendments to RMAs (save for the extension of time) and for the conditional grant of RMAs.

Background

Fulford v York relates to a residential scheme on land at Germany Beck in Fulford, York, which has been the subject of more than one challenge. The issue at the heart of this case is the power of a local planning authority under section 96A of the Town and Country Planning Act 1990 (1990 Act) to amend a planning permission relating to land in its area, provided it is satisfied that the change is not material. The question for the Court of Appeal to consider was whether the power under section 96A could not extend to reserved matters approvals because such approvals are not "planning permissions".

Fulford argued that it was unlawful for the local planning authority (York) to approve a non-material amendment to a condition attached to a RMA because section 96A did not empower York to make that decision. This was because, they argued, an approval of reserved matters is not a planning permission. The thrust of Fulford's argument was that legislation and case law maintain a clear distinction between a "planning permission" on the one hand and an "approval" on the other, and nowhere in the 1990 Act does it say that the approval of reserved matters is an application for planning permission.

Lewison LJ, who gave the leading judgment, accepted that the approval of reserved matters is not, itself, a planning permission and that an application for such approval is not, itself, an application for planning permission; however, he held that 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 subjected, whether the conditions are imposed at the time of or subsequent to the grant of permission. On this point, Lewison LJ confirmed that it is lawful for local planning authorities to give conditional approval to reserved...