What to do when a non material amendment is refused

A section 96A refusal cannot be appealed. There is no right of appeal against refusal of a non-material amendment, and the only challenge is judicial review, which examines whether the decision was lawful rather than whether it was right. On a window reveal detail, that is not a proportionate response.

So the question becomes which other route to use. There are three: a section 73 application to vary a condition, a fresh application for the amended scheme, or a redesign that stays within what is already approved. The right answer usually depends on where the site is in its programme rather than on planning principle.

What a non material amendment application is for

Section 96A allows a local planning authority to make a change to an existing planning permission where the change is not material. There is no statutory definition of non-material, so it is a judgement for the authority, which must have regard to the effect of the change together with any previous changes on the permission as originally granted.

The determination period is 28 days. There is no publicity requirement and no formal consultation, which is exactly why the route is attractive and why authorities apply the test carefully.

What it handles well: correcting a drawing number, a small dimensional change with no external effect, repositioning an internal partition, substituting a material with an equivalent, adding or altering a condition where the parties agree. What it cannot handle: anything that changes the description of development, and anything with a material planning effect on neighbours, highway safety, heritage or ecology.

The cumulative point catches repeat users. Three small amendments, each defensible alone, can together take a scheme far enough from the original that the fourth is refused on the cumulative effect.

Why the absence of an appeal right matters

It changes how you should approach the application in the first place.

With no appeal, the refusal is the end of that route. So do the work before submitting: identify which drawings change, describe the change in one sentence, say why it has no material effect, and address the cumulative position by listing any earlier amendments. An application that leaves the officer to work out what has changed is inviting a refusal you cannot contest.

Talk to the case officer first where the change is borderline. A five minute conversation will usually tell you whether a section 96A will fly, and an officer who says it will not has saved you 28 days.

Judicial review remains available, on the usual public law grounds, within the short time limit that applies to planning challenges. It is worth mentioning to a client so the position is clear, and then setting aside.

Choosing between section 73 and a fresh application

Section 73 allows development without complying with a condition previously imposed, and it carries a right of appeal under section 78. That right is the main reason to prefer it.

Its limits are real. It operates on conditions, so there has to be a condition to vary, most commonly the approved plans condition. And it cannot be used to alter the description of development, a point settled by the Court of Appeal in Finney v Welsh Ministers. A section 73 application that in substance changes the description will be refused, and the refusal will be upheld.

That last row is the commercial risk in a fresh application. A permission granted three years ago was assessed against a different policy position, and a fresh application is judged against today's. Biodiversity net gain, water efficiency standards, fire safety requirements and space standards have all moved, and a resubmission can pick up obligations the original permission never carried.

Where a minor material amendment is the right route

The phrase minor material amendment has no statutory basis. It describes the practice of using section 73 to vary the approved plans condition where a change goes beyond non-material but stops short of needing a new permission.

It works where three things hold. There is an approved plans condition to vary. The description of development still describes the scheme accurately. And the change, while material, does not alter the development so far that the authority would be granting something different.

Two practical notes. A section 73 grant creates a new permission sitting alongside the original, so the section 106 agreement needs to be linked to it, usually by a deed of variation. And the new permission has to carry the original implementation time limit, which means a section 73 cannot rescue a permission approaching expiry.

Watch also for section 73B, inserted by the Levelling-up and Regeneration Act 2023, which provides a power to grant permission to vary an existing permission where the effect is not substantially different. Check the commencement position before relying on it, because provisions in that Act have been brought into force in stages.

Conditions that constrain later amendments

Most amendment problems are created at the original application, by conditions drafted more tightly than anyone needed.

An approved plans condition listing 34 drawings by number and revision means any change to any one of them requires an application. A condition specifying a named product rather than a performance standard means a substitution needs consent. A condition tying landscaping to a plant schedule means a nursery shortage becomes a planning matter.

The fix is at drafting stage. Where an officer proposes a condition, offer wording that specifies the outcome instead of the item. Materials to match the approved sample panel, rather than a named brick. A landscape scheme achieving stated species mix and sizes, rather than a fixed list.

Avoid the formula that permits departure if otherwise agreed in writing with the authority. Guidance on the use of conditions expects them to be precise and enforceable, and that wording undermines both. It also gives false comfort, because an agreement in writing under such a condition is not a substitute for the statutory amendment routes.

Practical sequencing on a live site

The dangerous moment is when the contractor has already built the change.

As an illustrative example, a scheme where the steel frame has gone in 300 mm higher than the approved section, and the section 96A application to reflect it is refused, presents three live risks at once. The built work is unauthorised. The permission may not have been implemented in accordance with its terms. And the next stage of construction compounds both.

Stop that work, not the whole site. Then take the routes in this order.

1. Establish precisely what differs from the approved drawings, measured rather than estimated.
2. Ask the officer what route they would accept, in writing.
3. Submit a section 73 application if there is a condition to vary and the description still holds.
4. Submit a fresh application if the description has to change, with a policy review of what has moved since the original grant.
5. Keep a written record of the sequence, because it will matter if enforcement is ever raised.

Where a section 73 or a fresh application is heading for refusal, withdrawing before a refusal is issued keeps the planning history cleaner, and where a refusal has already landed, reading the refusal and turning it into a plan is the first step rather than an appeal form.

Avoiding the problem at the original application

Three habits remove most future amendment applications.

Write the description of development at the level of generality the scheme actually needs. Erection of a dwelling with associated access and landscaping gives room that erection of a four bedroom dwelling with detached double garage does not.

Submit fewer drawings for approval, and make them the ones that matter. Every drawing listed in the condition is a hostage.

And explain the design flexibility in the supporting documents. A Design and Access Statement that identifies which elements are fixed and which will be developed at technical design stage gives the officer a basis for a proportionate condition, and a Planning Statement that offers condition wording is more likely to get wording you can live with.

Enter your postcode on PlanScope to see which documents a fresh or varied application on your site would need.

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.