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Non-Material Bats?

A recent case heard in the Court of Appeal Civil Division has raised interesting issues regarding the scope of a non-material planning amendment made under Section 96 of the Town and Country Planning Act 1990. 

In this particular matter an outline permission had been granted and the reserved matters had also been approved by the Council. 

One of the conditions on the reserved matters approval related to a Bat Mitigation Strategy and Method Statement.  The issues in the application involved providing safe corridors for bats to pass through the development. 

The Council subsequent received from the developer a Non-Material Amendment to alter approved layout plans under reserved matters and to amend the approved Bat Mitigation Strategy. 

The change effected by the non-material amendment application was to change approved house types and layouts and a change to the Bat Mitigation Strategy to enable the provision of the bat corridors to a different time frame. 

The position taken by the Parish Council, who were challenging the decision of the City of York Council, was that Section 96A gave the Council power to make a change to a planning permission or a permission in principle.  It raised the issue that as such an approval of reserved matters is not as such a planning permission but an approval.

The Court took the view that if a condition is imposed at reserved matters stage, then that is in itself a condition subject to which the planning permission has been granted.  Therefore, the Court took the view that Section 96A and the non-material amendment to application could be used as a means to amend a condition imposed on a reserved matters approval.

Comment

It will be interesting to see how far the decision made by the Court will be applied in other circumstances.  It appears that the safe-guard of whether the amendment is non-material will be the governing factor as to whether the jurisdiction imposed by Section 96A will be used to approve conditions imposed on reserved matters in further cases. 

For any more information please contact Gareth Pinwell from our Planning Team on: g.pinwell@ashfords.co.uk

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