Non-material amendments: procedure and timescale

A non material amendment under section 96A of the Town and Country Planning Act 1990 is the quickest way to change an approved scheme: 28 days, a small fee, no consultation, no new permission. It is also the most frequently misused route in the system, because there is no statutory definition of non material and architects reach for it whenever a change feels small.

The test is not about size. It is about whether the change is material to the permission as granted, judged in the context of that particular scheme. Moving a window 300 millimetres on a rear elevation of a housing estate will be non material in nearly every case. The same move on the principal elevation of a building in a conservation area may not be.

What counts as non material

Section 96A gives the local planning authority power to make a change to any planning permission where it is satisfied that the change is not material. In reaching that view the authority must have regard to the effect of the change, together with any previous changes, on the permission as originally granted.

That cumulative wording is the part most often overlooked. Three successive amendments, each defensible on its own, can together amount to a materially different scheme, and the authority is required to consider them as a package.

Changes that usually go through:

• Correction of a drawing error, such as a dimension inconsistent between plan and elevation.
• Minor repositioning of internal walls, doors or stairs where the external envelope is unchanged.
• Substitution of a brick or tile for a close match, where materials are not controlled by a condition.
• Small adjustments to window or door openings on elevations of low sensitivity.
• Addition or omission of a rooflight on a rear roof slope.
• Changes to the position of a flue, service cupboard or soil vent pipe.

Changes that usually do not:

• Anything that increases floorspace, height or footprint by more than a trivial amount.
• A change to the number of units, or to the mix of unit sizes.
• Alterations to the principal elevation of a heritage asset or a building in a sensitive setting.
• Changes affecting matters that were the subject of a consultee objection or a committee debate.
• Anything that engages a condition, since the condition itself then needs varying.

The useful question to ask before applying is whether any consultee or neighbour who commented on the original application would have commented differently. If the answer is plausibly yes, this is the wrong route.

Who decides, and on what basis

The decision is the authority's, taken by officers under delegated powers in practically every case. It is a judgement about materiality, not a fresh assessment of the planning merits, and the authority is not re-opening the acceptability of the development.

There is no statutory requirement to publicise a section 96A application or to consult neighbours, and most authorities do not. Some will take an informal view from a conservation or highways officer where the change touches their area, which is sensible and adds a few days.

One structural point worth knowing: there is no right of appeal against refusal of a section 96A application. If the authority says no, your options are to accept it, to apply again with a smaller change, to use a different route, or to challenge the decision in the High Court. That absence of an appeal is a good reason to sound the change out with the case officer before submitting.

Making the application and the fee

The application is short. What the authority needs is the original permission reference, a clear statement of the change, and drawings that show it.

Submit:

1. The application form, identifying the permission to be amended by reference number and date.
2. A written description of the change, expressed as a list of substitutions rather than as a narrative.
3. Superseded and replacement drawings, with revision numbers and dates.
4. A short covering note explaining why the change is not material, addressing the cumulative effect of any earlier amendments.

That fourth item is optional and it is the one that makes the difference. Two paragraphs explaining why the change does not affect anything the original decision turned on gives the officer the reasoning to adopt. Where the scheme is sensitive, a short Planning Statement addressing materiality directly is better still.

A prescribed fee applies, and it differs between dwellinghouses and other development. Fees are revised and indexed, so check the current schedule rather than relying on a figure from a previous job. The separate rules on planning fee exemptions and reductions do not generally help here, because the amendment fee is low to begin with.

The 28 day determination period

The prescribed period for determining a section 96A application is 28 days, beginning the day after the application is received, unless a longer period is agreed in writing.

Two practical points about that period. It is short enough that a request for further information mid-period usually means the application fails to be determined in time, so get the drawing set right first. And there is no deemed approval if the authority misses the deadline, so a silent 28 days leaves you with an undetermined application rather than a consent.

The fact that section 96A does not create a new permission is the most useful feature of the route. The original time limits, conditions and section 106 obligations stay exactly as they were, and the community infrastructure levy position is unaffected. A section 73 permission, by contrast, is a new permission which can disturb all of those.

What this route cannot change

The description of development cannot be altered through a non material amendment. National guidance is clear on that point, and it is the limit most often tested. If the approved description says "erection of 14 dwellings" and you now want 15, no amendment route gets you there.

Three further limits:

• A permission that has expired cannot be amended, because there is nothing to amend.
• Listed building consent has no equivalent provision, so changes to consented works on a listed building need a fresh listed building consent application.
• Conditions cannot be varied or removed by this route. A change that requires a different condition is a section 73 application.

Where an amendment interacts with a section 106 agreement, the obligation does not follow automatically. Since the permission is the same permission, the agreement continues to bite as drafted, which is usually helpful. Where the change makes an obligation unworkable, varying a section 106 agreement after permission is a separate exercise with its own timescale.

Section 73 and the alternative routes

Section 73 allows an application for planning permission to develop land without complying with a condition previously imposed. In practice it is the route for amendments to approved plans, because the plans are normally tied in by condition.

The limit on section 73 is that it cannot be used to vary a condition in a way that conflicts with the operative part of the permission. The Court of Appeal in Finney v Welsh Ministers confirmed that a condition cannot be varied so as to contradict the description of development, which closed off a workaround that had been in common use.

So the decision tree is short. If the change does not touch a condition and is not material, use section 96A. If it touches a condition but the description still fits, use section 73. If the description no longer fits, a fresh application is the only route. Browse the report types if that fresh application brings new supporting documents with it.

Keeping the approved drawing set coherent

The administrative risk with amendments is ambiguity about what is approved. After two section 96A amendments and a section 73, a site can hold a decision notice listing drawings from three different dates.

Four habits prevent that:

Maintain a single schedule of approved drawings, with revision numbers and the decision that approved each one, and update it after every amendment. Use revision letters that never repeat across the project. Ask the authority to list the full amended drawing schedule in the amendment decision notice rather than only the changed sheets. And keep a copy of every superseded drawing, because a discharge of conditions application two years later will refer to whichever version was current then.

That schedule is also what a purchaser's solicitor will ask for. Assembling it as you go takes minutes. Reconstructing it at the point of sale takes days.

Enter your postcode on PlanScope to see which documents a revised scheme is likely to need before you decide which amendment route to use.

This is general guidance, not legal advice; check the current fee schedule and the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.