Section 96A non-material amendments and their limits

A non material amendment under section 96A of the Town and Country Planning Act 1990 lets a local planning authority change an approved scheme without granting a new permission. The original decision stays alive, the drawings list is updated, and the amendment is recorded against the same reference. It is quick and inexpensive, and it is also narrow: if the change alters what a reasonable person would understand the permission to allow, the authority will refuse it and send you to section 73 or a fresh application.

Most architects meet section 96A when a client's window position moves 300mm, a soil vent pipe appears on a rear elevation, or a contractor substitutes a brick that is no longer produced. Those are the right jobs for it.

What section 96A allows

Section 96A gives the authority power to make a change to an existing planning permission if it is satisfied that the change is not material. Any person with an interest in the land may apply. The power extends to imposing new conditions, and to removing or altering existing ones, provided the overall effect stays non-material.

There is no statutory definition of "non-material". Parliament left the judgement to the authority, and section 96A(2) tells it how to approach the question: it must have regard to the effect of the change, together with any previous changes made under the section, on the planning permission as originally granted. That cumulative wording matters on long build programmes. Three separate amendments, each defensible on its own, can add up to something an officer will not accept on the fourth application.

Section 96A applies to planning permission. It does not apply to listed building consent, which has no equivalent power under the Planning (Listed Buildings and Conservation Areas) Act 1990, so a change to consented works on a listed building needs a fresh consent application however small it looks. Advertisement consent and hazardous substances consent sit outside it too.

How authorities decide what is non-material

Officers ask a practical question: would this change have altered the recommendation, the consultation responses, or the conditions? If the answer is no, it is usually non-material.

The judgement is site-specific, which is why two councils can treat the same change differently and both be right. A 200mm increase in ridge height on a detached house in a large garden is a detail. The same increase on a terraced infill plot, where the officer report turned on the relationship with the neighbouring rear windows, is not.

Things that push a change towards material:

• it affects a matter that was contested during the original determination
• it alters something described in the permission itself rather than only on the approved drawings
• it changes the relationship with a boundary, a protected tree or a heritage asset
• it would have triggered a consultation that was not carried out, such as a highway authority response
• it increases floorspace in a way that touches an obligation, the community infrastructure levy or an affordable housing trigger

Most authorities publish a short note setting out what they will and will not entertain. Read it before you draw the change, not after.

Changes that are almost never accepted

Some requests come back refused with tiring regularity.

An increase in the number of units is one. Even one extra flat changes the affordable housing position, the levy calculation and the parking assessment. Another is a change to the description of development on the decision notice. The description defines the permission, and amending it is not a detail.

Extensions of time are the third. Section 73(5) prevents a variation application being used to extend the period within which development must be started, and authorities will not achieve the same result through section 96A either. If the three years are running out, either make a start on site that is lawful and material, or apply again.

Also on the list: relocating a building within the site by more than a token amount, changing an access position, removing a landscaping or drainage condition that the officer relied on to make the scheme acceptable, and swapping a flat roof for a pitched one. Anything a neighbour would notice from their kitchen window belongs in a section 73 application.

The determination period and the fee

Section 96A applications are determined within 28 days beginning with the day after the application is validated, unless a longer period is agreed in writing. That period is set out in the Development Management Procedure Order 2015, and it runs faster than the eight weeks you would wait for a minor application.

There is no national requirement to publicise a section 96A application, and no statutory consultation. Some authorities notify neighbours anyway where the change is visible externally. Expect that to add a fortnight in practice.

The fee sits in the Fees Regulations and has two bands: a lower one where the permission relates to a dwellinghouse, and a higher one for everything else. Both are indexed, so check the current schedule on the Planning Portal before you invoice the client rather than quoting last year's figure. There is no fee exemption for a second attempt.

There is no right of appeal against a refusal. That is the trade for the speed. If the authority says no, your options are to submit a section 73 application to vary a condition or a full application, and to build in the extra 8 to 13 weeks.

An illustrative example

A two-storey rear extension is approved on a 1930s semi. During construction the client asks to move the rear ground floor window 400mm towards the boundary and change the render colour from off-white to light grey. The window sits on an elevation facing the applicant's own garden, and the render was not the subject of any condition or objection. This is illustrative rather than a decided case, but that package would ordinarily be dealt with under section 96A in a single 28-day determination. Add a request to raise the eaves by 300mm and the officer is likely to send the whole thing to section 73.

Why the original permission is amended rather than replaced

Section 73 creates a new planning permission that sits alongside the original. Section 96A does not. The original permission is amended, so the implementation period, the conditions and any section 106 agreement attached to it all carry through untouched.

That difference is the reason to prefer section 96A when both routes are technically open. A new permission under section 73 needs the obligation to be re-attached by deed of variation, restarts the argument about whether policy has moved on since the original grant, and gives the authority room to reconsider conditions. On a site with a heavily negotiated agreement, a deed of variation can take longer than the construction work you were trying to amend.

The Court of Appeal decision in Finney v Welsh Ministers set the other boundary. A condition cannot be varied under section 73 where the variation would conflict with the operative description of the development. So if your change contradicts the description, neither section 73 nor section 96A will help, and a fresh application is the answer.

Recording amendments on the decision notice

The authority issues a notice confirming the amendment and listing the superseded and substituted drawings. Keep it with the original decision. A permission that has been amended twice is only intelligible when all three notices are read together, and the person who needs to read them is usually a purchaser's solicitor five years later.

Two habits save arguments. Number your revised drawings clearly and reference both the original drawing number and the revision letter in the application. And update the approved drawings condition itself, rather than relying on the covering letter, so the amended list appears in the condition wording.

Where the works have already been built slightly differently from the approved drawings, a section 96A application is the tidy route back into compliance before completion. Where they have been built and finished, and the difference is arguable, the evidence needed for a certificate of lawfulness becomes the relevant question instead.

When section 73 is the correct route instead

Use section 73 when the change is material but the scheme is recognisably the same development, when a condition needs to be varied rather than a drawing substituted, and when the authority has told you it will not accept a section 96A. Use a full application when the description of development changes, when unit numbers change, or when the site circumstances have moved on enough that the officer needs to reassess the whole scheme.

A short covering statement helps in every case. Set out what changed, why, and which parts of the original officer report the change does not disturb. If a fuller policy case is needed, a Planning Statement is the document that carries it, and a section 73 application on a contested site usually justifies one.

This is general guidance, not legal advice; check 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. Enter your postcode on PlanScope to see which reports your site needs before you submit the amendment.