Amending a scheme during an appeal and the fairness test

Amended plans at appeal are accepted only where the change is small enough that nobody who should have been consulted is deprived of the chance to comment on it. The test comes from Bernard Wheatcroft Ltd v Secretary of State for the Environment, where the court asked whether the development had been so changed that granting permission would deny interested parties that opportunity. Prejudice, not scale, is the measure, though in practice the two usually move together.

The inspector decides whether to accept the amendment, and the decision is procedural rather than a matter of merits. Which means an architect can lose a good scheme on a point of process.

Why amendments at appeal are restricted

An appeal under section 78 of the Town and Country Planning Act 1990 is a re-determination of the application that was refused. The inspector steps into the council's shoes under section 79 and decides the same application. There is no mechanism for the inspector to decide a different one.

The consultation that happened at application stage was on the drawings as submitted. Neighbours, the parish council, the highway authority and any statutory consultee responded to those. If the drawings change after the appeal is lodged, the responses on file no longer address the scheme being decided.

So the restriction protects third parties rather than the council. A council that agrees to an amendment cannot waive the point on behalf of the neighbours, and inspectors say so when it is tried.

The prejudice test an inspector applies

Expect the inspector to work through four questions.

1. Does the amendment alter the substance of what was applied for, or only its detail?
2. Would any party who commented, or who should have been consulted, want to say something different about the amended version?
3. Has the council had a fair opportunity to assess the change and state a position?
4. Can any residual unfairness be cured by re-notification within the appeal timetable, and is that proportionate?

A yes to question two is usually fatal unless question four rescues it. Re-notification is possible, and inspectors do direct it on the written representations and hearing routes, though it adds weeks and the inspector has to be satisfied it is worth doing.

On the householder appeals route there is effectively no room for this at all. The procedure is expedited and closes after the initial submissions, so amendments are not entertained.

Minor changes usually accepted

The changes that get through are those that reduce the scheme or respond directly to a reason for refusal without introducing anything new.

Reduction is the safest category. An amendment that makes the development smaller, and that removes rather than adds impact, rarely prejudices anyone. The person who objected to a 4 metre extension has nothing new to say about a 3 metre one.

Extending the application site is at the other end. A change to the red line brings in different land, possibly different owners, and a different set of notices, and it will not be accepted.

Changes that require a fresh application

Where the amendment goes to substance, the appeal is the wrong vehicle. Two routes remain.

Submit a fresh application for the amended scheme and run it alongside the appeal. The council gets to determine the new scheme on its merits while the inspector decides the original. That costs a second fee and officer time, and it occasionally produces the awkward result of a permission and a dismissal arriving in the same month, but it keeps both options alive.

Or withdraw the appeal and resubmit. Cleaner, slower, and it loses whatever advantage the appeal timetable gave you. Our note on withdrawing an application before refusal covers the related judgement at the earlier stage, which turns on much the same calculation.

There is a third possibility worth keeping in mind. Where the only problem is a detail that could be controlled by condition, propose the condition rather than redrawing. Inspectors have wide powers to impose conditions, and a condition requiring an obscure-glazed window or a revised boundary treatment achieves the same outcome without touching the drawings.

Consulting interested parties on a revision

If you are going to ask for an amendment, do the groundwork before you ask.

Write to the Inspectorate and to the council as soon as the change is settled, with the amended drawings, a schedule of what has changed drawing by drawing, and a short note explaining why no party is prejudiced. Copy the parties who commented where the council will give you the list.

The schedule of changes is the document that decides this. An inspector handed a bundle of new drawings and told they are minor has to work out the differences alone, and will be cautious. An inspector handed a table that says "drawing 102 rev C: rear projection reduced from 4.0 m to 3.2 m, no other change" can make the judgement in a minute.

Where neighbours wrote in on the point being amended, say in terms whether you have told them and what they said. Volunteering a re-notification period is sometimes the thing that gets the amendment through.

Timing within the appeal programme

Earlier is better, and there is a practical cliff edge.

On written representations, the realistic window is with the statement of case or shortly after. Once the council has filed its statement and the interested party comments are in, an amendment forces the inspector to reopen a closed sequence.

On hearings and inquiries, raise it at or before the case management conference. An amendment produced in the week before an inquiry opens will be refused, and it may attract an application for costs if it has caused the other side wasted work.

The site visit is another marker. An inspector who has already visited and assessed the scheme as drawn will not welcome new drawings afterwards.

Withdrawing and resubmitting instead

Sometimes the honest answer is that the appeal was lodged too early. If the refusal reasons identify something you now accept needs changing, the appeal is being used to carry a scheme you no longer want to build.

Read the refusal notice again before deciding, breaking it into the separate objections it actually contains, which is the exercise in reading a refusal notice and turning it into a plan. Then ask one question. Is the dispute about judgement or about the drawings? Disputes about judgement belong at appeal on the original scheme. Disputes about the drawings belong in a new application.

Whichever route you take, set the planning case out properly. A Planning Statement that addresses each refusal reason in turn, with the Design and Access Statement carrying the design justification, gives an inspector the structure to work with and makes any amendment request easier to assess. Interested parties keep their own rights throughout, as what objectors can do once a planning appeal starts explains.

This is general guidance rather than legal advice, and whether an amendment is accepted is a matter for the inspector on the facts, so check the position with a qualified professional before relying on it.

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