Non-material amendments and why nobody consults you

A planning permission can be changed after it is granted without anyone telling the neighbours. The route is a non-material amendment under section 96A of the Town and Country Planning Act 1990, and it carries no statutory requirement to publicise the application, notify adjoining occupiers or consult anybody at all. That is not an oversight. It is how the section was designed.

For a neighbour who objected to a scheme, watched it approved with conditions and then noticed the building going up with a different window arrangement, this is the provision that explains the silence.

What a non-material amendment can change

Section 96A allows a local planning authority to make a change to an existing planning permission where the change is not material. The Act does not define non-material, and that is deliberate. Whether a change is material depends on the permission, the site and the context, and it is a judgement for the authority.

In practice the route is used for small things. A minor repositioning of a window, a substitution of a brick or roof tile for a similar one, a correction to a drawing number, a small adjustment to an internal layout, a change to the position of a flue or a meter cupboard.

There are hard limits. A non-material amendment cannot change the description of development. That single rule does a lot of work, because anything that alters what the permission is for, such as adding a unit or changing a use, falls outside the route entirely. Conditions can be added, removed or altered as part of the amendment, but only where the overall change remains non-material.

The amendment does not create a new permission. It changes the existing one, and the original time limit for implementation continues to run unchanged.

Why there is no consultation

The absence of publicity follows from the test. If a change is not material, then by definition it does not affect the planning merits in a way that would alter the decision, so there is nothing for a consultee to say about it.

The procedure is correspondingly light. The authority has a short determination period, ordinarily 28 days, and the fee is a fixed sum set nationally, lower for householder applications than for other development. There is no right of appeal against a refusal, which is the other side of the same bargain.

The weakness in the arrangement is obvious to anyone on the receiving end. The judgement about materiality is made by the authority alone, without hearing from the people most likely to notice the effect, and the first a neighbour usually knows is when the building looks different from the drawings they read during consultation.

How authorities decide what is non-material

Councils apply their own published approach, and while the detail varies, the reasoning tends to follow the same lines.

The authority looks at the scale of the change against the scale of the development, whether the change affects the external appearance in a way a reasonable observer would notice, whether it affects neighbouring amenity, whether it conflicts with any condition or with the development plan, and whether the cumulative effect of this amendment plus previous ones remains non-material.

That last point matters. A sequence of small amendments can add up to a materially different building, and a well run authority tracks them. Where you are looking at an amendment on a site that has had several, it is worth asking the case officer whether the cumulative position has been considered.

Changes that increase height, extend the footprint, alter the position of the building on the plot, introduce new windows overlooking a neighbour or remove an element that was relied on in the original decision are not usually accepted through this route.

Finding amendments on the public register

Non-material amendments appear on the planning register even though they are not advertised. They are listed as applications with their own reference, usually carrying a suffix that identifies them as section 96A applications.

To keep track of a permission you care about:

• Search the register by the original application reference rather than by address, because related applications are usually linked to it.
• Check the site history page for the address periodically, not only when something visible happens.
• Set up an alert with the council where one is offered, and include the original reference.
• Look at the decision notice for any amendment, which lists the revised drawing numbers.
• Compare the revised drawing list against the one on the original decision notice.

Discharge of conditions applications appear the same way and are also undertaken without publicity, which is a related source of change, covered in discharging conditions or amending a permission.

The other route, and why it does involve consultation

Changes that are material but not fundamental go through section 73 of the 1990 Act, which is an application to vary or remove a condition. Because a section 73 application is determined as an application for planning permission, it attracts publicity, consultation and the usual rights.

The distinction between the two routes decides whether you get a say, and it is the single most useful thing for a neighbour to understand. The differences are set out in section 73 or section 96A amendment.

A section 73 application produces a new permission sitting alongside the original, with its own conditions and its own reference. Neighbours can comment on it, the officer must consider those comments, and the decision can be taken to committee in the same way as any other application.

Where the change goes beyond what section 73 can achieve, a fresh application is required, with full publicity.

Raising a concern about an amendment

If you find a non-material amendment on the register that you think is material, write to the case officer before the 28 days expire. Say why the change is material rather than simply objecting to it, because materiality is the only question the officer can consider at that point.

Useful points include the effect on outlook or privacy from a specific window, a change in height or position that alters the relationship with your property, the removal of something that was relied on in the original decision such as a screen or an obscure-glazed panel, and the cumulative effect of earlier amendments.

If the amendment has already been approved, the options narrow. You can ask the council to consider whether what is being built matches the amended permission, which is an enforcement question rather than an application one. Where you think the authority has handled the process badly, the Local Government and Social Care Ombudsman considers complaints about maladministration after the council's own complaints procedure is exhausted.

Neighbours cannot appeal a grant of permission or an amendment, and the reasons for that are explained in whether neighbours can appeal a planning permission. Where a decision notice contains an obvious error rather than a deliberate change, a different mechanism applies, described in correcting a mistake in a decision notice.

When the change needs a fresh application

The practical test is whether the development, as amended, is still the development that was permitted. Adding a dwelling, changing a use class, extending beyond the approved footprint, raising the ridge or altering anything in the description all take the change outside section 96A and usually outside section 73 too.

If you are watching a build that no longer resembles the approved drawings, the question to put to the council in writing is a simple one: which permission and which drawing numbers authorise what is being built. That question is answerable from the register, and asking it produces a clearer response than a general complaint.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

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