Section 96A refusals and the absence of an appeal

A refused non-material amendment application cannot be appealed. There is no right of appeal against a refusal under section 96A of the Town and Country Planning Act 1990, because the section confers a discretionary power on the local planning authority rather than a right on the applicant, and Parliament attached no appeal to it. So when a non material amendment is refused, the choices are a section 73 application, the newer power under section 73B where it applies, a fresh application, or judicial review. Choosing between them is the whole exercise.

What section 96A can and cannot do

Section 96A lets an authority make a change to an existing planning permission where that change is not material. The judgement is the authority's, and the section requires it to have regard to the effect of the change, together with any previous changes made under the same power, on the permission as originally granted.

That cumulative test is the reason a fifth amendment can be refused when four similar ones were approved. Each application is assessed against the permission as granted, not against the permission as most recently amended, so a sequence of small changes eventually exhausts the headroom.

The power extends to imposing new conditions and to removing or altering existing ones, provided the overall change remains non material. What it does not reach is the description of development. The courts have held that a section 73 permission cannot vary the description of development, and authorities apply the same reasoning to section 96A, so a change that requires the description to be reworded needs a different route. Nor can it change the application site boundary, add land, or extend the time limit for implementation.

The attractions are obvious: a low fixed fee, indexed annually, and a statutory determination period of 28 days unless a longer period is agreed. That is why it is over-used, and why refusals are common where the amendment is really a material one presented hopefully.

Why there is no appeal

The absence of an appeal is a design feature rather than an oversight. Section 96A was introduced to give authorities a quick administrative mechanism for trivial changes, and an appeal route would have defeated the purpose.

The only challenge to a refusal is judicial review, on ordinary public law grounds: that the authority misunderstood the test, took into account something irrelevant, failed to take into account something relevant, or reached a conclusion no reasonable authority could reach. Claims are rare, because the materiality judgement is precisely the sort of planning judgement courts decline to second guess, and because the practical alternative of applying under section 73 is usually faster than litigation.

One point is worth pressing with the case officer before a refusal is issued. Authorities sometimes refuse on the basis that the change is material without saying why, and a refusal notice with no reasoning is harder to work with than one that identifies the specific effect complained of. Ask for the concern in writing while the application is live, and amend the request if it can be narrowed.

The section 73 route and its limits

Section 73 allows an application for development without complying with a condition attached to an earlier permission. In practice it is the workhorse for amendments, because most schemes are controlled by a condition listing the approved drawings, and substituting revised drawings under that condition is how changes are consented.

The route does carry a right of appeal, and it produces a new permission sitting alongside the original rather than replacing it, which has consequences for community infrastructure levy liability and for the conditions attached to the new permission.

Four limits matter. A section 73 permission cannot vary the description of development, following the Court of Appeal decision in Finney v Welsh Ministers, so an amendment that changes what the permission is for falls outside it. It cannot extend the time limit for implementation. It cannot be used once the permission has expired. And the change must not conflict with the operative part of the permission, which is the practical test that decides most disputes.

Fees and timescales are higher than section 96A but the determination period is the ordinary one for the development type, and the authority will consult and publicise as it would for an application. Where a refusal reason on a section 73 application looks weak, the ordinary considerations in deciding whether a refusal reason is worth appealing apply in the usual way.

Section 73B and the gap it was meant to fill

The Levelling-up and Regeneration Act 2023 inserted section 73B, a power to grant planning permission for development that is not substantially different from development already permitted. It was intended to occupy the ground between the narrow non material amendment and a full fresh application, and it is drafted to allow variation of the description of development, which section 73 cannot do.

The 2023 Act has been brought into force in stages, and the detailed procedure sits in regulations and guidance. Check whether section 73B is in force and what the current guidance says before advising on it, and give the date of your check, because this is the part of amendment practice most likely to have moved since any article was written.

Where it is available, the question becomes which of three powers fits: section 96A for a change that is not material at all, section 73 for a condition based change within the existing description, and section 73B for a change that goes further but leaves the development substantially as permitted. The comparison is worth setting out explicitly in the covering letter, because it shows the officer that the route has been considered rather than assumed.

When a fresh application is the only answer

Some amendments cannot be squeezed into any of the amendment powers, and recognising that early saves a wasted cycle.

A change to the red line boundary needs a fresh application, because none of the amendment powers can add or remove land. A change requiring the description of development to be reworded needs either section 73B, where available, or a new application. An increase in floorspace or unit numbers that crosses a policy threshold, triggering affordable housing, a transport assessment or the biodiversity gain condition in a different way, is material almost by definition. And where the permission has lapsed, there is nothing to amend.

A fresh application also has an advantage worth weighing: it produces a clean, single permission rather than a stack of amendments that a future purchaser's solicitor has to reconcile. On a scheme that has already been amended several times, the cumulative test under section 96A is working against you anyway, and a consolidating application can be the more efficient answer. The Planning Statement for that application should set out the planning history and explain why consolidation is proposed.

Drop-in applications after Hillside

The Supreme Court decision in Hillside Parks Ltd v Snowdonia National Park Authority changed how amendments to part of a larger site are handled, and it caught a lot of schemes mid-build.

The principle is that where a later permission is implemented and makes it physically impossible to complete the development authorised by an earlier permission, further development under that earlier permission becomes unlawful. A drop-in permission covering one parcel of a large site can therefore undermine the permission for the rest of it, rather than sitting harmlessly alongside.

The practical responses are to vary the original permission under section 73 so that the whole scheme remains consistent, to apply for a fresh permission covering the entire site as amended, or, where the original permission was drafted as a series of severable permissions for defined phases, to rely on that severability. The last option only works where the drafting supports it, which is a reason to structure large permissions and their conditions with future amendment in mind.

Decisions applying Hillside are indicative of how the principle is being handled rather than a substitute for advice on a specific scheme, and using appeal decisions as evidence in an application is the right way to deploy them.

Keeping amendments inside the permission you have

Most of this is avoidable at the drafting stage, before there is anything to amend.

Ask for a drawings condition that lists documents by number and revision, and keep the list as short as the authority will accept, because every listed drawing is a document you may later need to substitute. Resist conditions that fix details better left to a later approval, and resist a description of development that recites dimensions or unit numbers, since a description containing numbers converts a design change into a description change.

Then keep a register. Every amendment, with its route, date, reference and the drawings superseded, so the cumulative position under section 96A is known before the next application is made rather than discovered in a refusal.

PlanScope drafts the written documents for each of these routes, including the planning statement and supporting assessments listed across all 66 report types, structured to UK planning policy with the site specific history flagged for completion rather than invented. Reports should be reviewed before submission, and PlanScope does not guarantee planning approval.

This is general guidance, not legal advice. Amendment law has moved more than once in recent years, so check the current position and take advice on a specific permission before relying on it.