Non-material amendments and the absence of consultation

A non material amendment no consultation situation is exactly what the statute provides for. Section 96A of the Town and Country Planning Act 1990 lets a local planning authority make a change to an existing planning permission where the change is non-material, and it attaches no requirement to publicise the application or notify neighbours. No site notice, no letters, no 21 day consultation period. The authority decides, usually within 28 days, and the amended plans replace the approved ones.

That is lawful and it is also the reason neighbours find a building going up that does not match the drawings they commented on. Knowing how to find these applications, and what the limits on them are, is the practical answer.

What a non-material amendment is

Section 96A allows an authority to amend a permission it has granted, provided it is satisfied that the change is not material. It can also impose, remove or alter conditions as part of the amendment.

The statute does not define non-material, and there is no national list. The authority decides as a matter of planning judgement on the facts of the case, having regard to the effect of the change on the permission as a whole and on anyone affected by it. A small change to a window position on a rear elevation, a change of brick manufacturer to a matching product, a minor repositioning of a bin store or a correction to a drawing reference are typical.

Two features of the procedure matter. The amendment does not create a new permission; it modifies the existing one, so the original time limits and conditions continue to run. And the application can be made by anyone with an interest in the land, including a successor in title.

Changes of substance need a different route. The difference between the procedures is worth being clear about, and the distinction from a section 73 variation is set out below.

Why there is no statutory publicity

Publicity requirements for planning applications come from the Development Management Procedure Order 2015, which sets out when a site notice, neighbour notification or newspaper advertisement is required. Those requirements attach to applications for planning permission.

A section 96A application is not an application for planning permission at all. It is an application to amend an existing one, and the Order's publicity provisions do not extend to it. The logic is that a change which really is non-material cannot affect anyone enough to warrant consultation, so publicising it would add delay for no purpose.

Whether that logic holds depends entirely on the authority applying the test properly. Some councils go further than the statute requires and notify immediate neighbours on anything affecting a shared boundary, or publish a weekly list including section 96A applications. Others do neither. Both approaches are lawful.

The test the authority applies

In practice officers assess three things.

Whether the change is material in planning terms, judged by its effect rather than its size. A 300 mm increase in height on a boundary wall overlooking a neighbour's garden can be material where a 2 m change to an internal layout is not. Whether the change affects anyone who would have been consulted on the original application, which is the question that does most of the work. And whether the cumulative effect of this change with earlier amendments to the same permission remains non-material.

That third point is where section 96A is most often stretched. Four successive amendments, each small, can move a building a metre and raise it 400 mm. Authorities are supposed to consider the change against the permission as originally granted, and officers under pressure sometimes consider it against the most recently amended version instead.

The one firm limit is that an amendment under section 96A cannot change the description of development. A permission for two dwellings cannot become a permission for three, however the drawings are presented.

Changes that should not qualify

Some changes come forward as non-material amendments and should not. The pattern is consistent enough to be useful.

Anything that increases the footprint or height in a way visible from a neighbouring property. Changes to window positions or sizes that create overlooking where none existed. A change from the approved materials to something visibly different, particularly in a conservation area or on a listed building. Removal or alteration of a condition that was imposed to protect amenity, such as an obscure glazing condition or a landscaping requirement. Changes that alter the parking provision or the access arrangement. And any change to the number of units or the use.

Where a change falls into one of those categories, the correct route is a section 73 application to vary a condition, or a fresh planning application. Section 73 applications are publicised in the normal way, with neighbour notification and a consultation period, which is precisely the difference that matters to a neighbour.

Listed building consent has no equivalent of section 96A, so changes to listed building works need a fresh consent application.

Finding amendments on the register

Every section 96A application appears on the council's online planning register, and the register is the only reliable way to find one.

Four practical steps. Search the register by the site address rather than by application reference, which brings up the whole planning history including amendments. Look for application references with a suffix indicating a non-material amendment, which differs by authority but is usually visible in the application type field. Subscribe to any email alert the register offers for applications at a given address or within a radius. And check the approved plans list on the decision notice, because an amended permission lists the superseding drawing numbers.

Checking a permission periodically through the construction period is the only way to catch a change early. A neighbour who looks at the register when the scaffolding goes up has usually left it too late to do anything other than complain about what has already been approved.

Illustrative example. A permission for a two storey rear extension is amended twice under section 96A: once to change a window to a door on the flank elevation, and once to raise the eaves by 250 mm to accommodate a revised floor build-up. Neither is publicised. The neighbour discovers the flank door when it is installed, two metres from their garden path. The register showed both amendments months earlier, with the drawings attached.

Challenging an amendment that goes too far

Three routes exist and they have different uses.

Write to the authority first, setting out why the change was material and asking it to reconsider. Authorities can and do accept that an amendment was wrongly determined, and the practical outcome is often a request to the applicant for a section 73 application or a fresh application. This costs nothing and is quick.

If the building work does not match the amended permission, that is an enforcement matter rather than an amendment question, and it goes to the enforcement team. The route for chasing one is described in how to get an update on an enforcement case, and a breach of a condition has its own mechanism, explained in breach of condition notices and what they achieve.

A decision under section 96A can be challenged by judicial review on the ground that the authority could not rationally have concluded the change was non-material, or that it failed to consider the cumulative effect. The six week time limit for planning challenges applies, and it runs from the decision rather than from when you found out, which makes this route unavailable to most neighbours by the time they notice. That is an uncomfortable feature of the regime rather than a loophole.

Monitoring a permission after grant

The realistic approach for anyone affected by a nearby permission is a short routine rather than vigilance.

Check the register for the site every few weeks between grant and completion, and read the approved plans list on any new decision. Keep your own copy of the original approved drawings, because a register that shows superseded plans alongside current ones is easier to read when you know what changed. Note the conditions that protect you specifically, such as obscure glazing, boundary treatment, landscaping or restricted hours, since those are the ones most likely to be varied or discharged in a form you would not expect. Reading the original decision notice properly at the outset makes the rest of this far easier, as set out in reading a decision notice as a neighbour.

And if a change looks material to you, say so in writing before it is determined rather than after. An authority with an objection on file dealing with a borderline amendment is far more likely to require the proper route.

This is general guidance, not legal advice. Practice on non-material amendments varies between authorities, and court deadlines are short, so check the position with your local planning authority or take legal advice before relying on this.