LPA Missed Deadline on Non-Material Amendment

[harry_angel]

This is an interesting one for my fellow planning eager beavers...in essence:

 

• we submitted a Non-Material Amendment, to PP already secured
• the LPA are required to determine all NMAs within 28 days, per the info below, no longer period was agreed in writing so the 28 days stands
• they have missed this date, wildly, by fully 4 months
• with a normal app, one would then have the recourse to go to appeal via the planning inspectorate, but no such recourse exists for NMAs: you cannot appeal them
• begging the question: what is the "penalty" to the LPA for failing to determine this NMA in time? Can this be leveraged at all? Are the non-material amendments we've made now, automatically, lawful as a result of the LPA failing to meet the 28 day deadline?

 

"The time period for determination of a non-material amendment is 28 days, unless a longer period has been agreed in writing between the parties."

 

"There is no right of appeal for refusal or non-determination of non-material amendment applications.  If they are refused then the applicant would have to submit a S73 application or a new planning application instead."

 

https://planningaid.zendesk.com/hc/en-us/articles/360011256758-Non-Material-Amendments-to-an-existing-planning-permission-section-96a- 

Edited November 16, 2021 by harry_angel
addition

[ToughButterCup]

Excellent set of questions @harry_angel

 

'... automatically lawful... '

my fingertip-sense says that if that were indeed the case, then they'd get on your case in a timely manner.

So - I bet the answer's No.  But @Ferdinand knows I guess ...... 

[Mr Punter]

Interesting.  I saw on Martin Goodall's blog that he considers section 96(a) pointless, as if the proposed change is not material you could carry it out under your current consent.

 

https://planninglawblog.blogspot.com/2013/11/minor-amendments.html

[Dreadnaught]

I wonder if it is worth simply writing to the council citing the relevant time limits and appropriate sections and simply stating that you now deem approval to have been granted as it has timed out. And let them contradict you if that is not so. You could add something like: "if I do not hear from you by X then I shall deem approval to have been granted" or such like.

 

In my situation, when I did this on a planning condition, my planning officer was kind enough to play along and mark the condition as approved in the system. He did not seem at all surprised that the particular domain specialist in the council (trees in my case) did not provide any comments within the time limit. And he was probably relieved to have one fewer issues to deal with himself. He also told me that I was the first person in his experience to use this mechanism.

 

Just my tuppence.

[harry_angel]

@Mr Punter thanks, however I don't fully understand the gist of Mr Goodall's comments. Can you offer a translation/succinct version?

[harry_angel]

@Dreadnaught they've actually just refused the NMA citing the beautiful opaque, vague and non-determinate "application does not constitute non material amendments" (it does).

 

But, as I say, they missed the deadline for determination by 4 months.

 

The penalty to the LPA in normal cases is they forfeit their right to be judge and juror.....but what's the penalty if they miss an NMA determination? There must be one, or what's the point of the govt saying NMAs have to be determined in 28 days...

[Mr Punter]

1 hour ago, harry_angel said:

@Mr Punter thanks, however I don't fully understand the gist of Mr Goodall's comments. Can you offer a translation/succinct version?

 

I think what he was saying was that unless you have had a condition imposed to adhere strictly to the approved drawings, if the amendment is non-material it would be allowed anyway.

 

On your point about timescales, there have been cases, such as some PD rights, where the LA are obliged to determine with a defined period, failing which, consent is assumed.  It does not seem to be the same for the s96(a) ones, sadly.

[Bramco]

It does beg the question though whether anyone would ever check that things hadn't been done according to the planning conditions, given they take 4 months to answer and NMA.

We amended window locations and cladding layout and some other minor points like security lighting has to be agreed - 'there will be no security lighting'.   We didn't mention a reasonable height increase on the highest section of the build....  ?      and things were done in 28 days.

 

What were you trying to amend?   I guess if these were really minor things, then would they ever try to enforce the submitted plan, or simply shrug their shoulders and say, 'actually we'd have passed that if you'd submitted the plans with those changes.'

 

Simon

[harry_angel]

This was the LPA's response in their refusal:

 

The proposed changes to planning application XXXX listed below are considered to amount to more than a non - material amendment.

 

· alter the position of the 4 approved rooflights
· adding fenestration to the south elevation, reducing fenestration to the west elevation
· increasing the structure's length by 0.5m.

 

A letter of objection has been received from a neighbouring property. You should consider submitting a S.73 application to vary the original permission.

 

 

[Temp]

I would take that last line as a hint they are likely to approve it. No guarantee mind.

[DevilDamo]

Who advised you increasing the size of a structure/building would constitute a NMA?

[harry_angel]

@DevilDamo..... somebody we no longer employ. ?

 

Was our error submitting an NMA when we should have submitted a Minor Material Amendment (MMA)?

 

I have just found an app, approved, for a property in the same area who increased two storeys by 2m using an MMA.

 

Fundamentally we believe the wider game here is that the LPA know they can't win this one long term, but wish to attach an S106 condition saying we can never rent or sell the outbuilding. That is why they're constantly pushing us to do a full app.

 

The MMA, as I far as I can see has 3 potential advantages at this point:

• it should cover the changes described (with precedent of a bigger increase being approved)
• appears that neighbours aren't fly-erd/can't comment
• it will prevent the LPA injecting an S106 Condition (??)

That last bullet is a question, in case anyone has the answer.

[DevilDamo]

Yes, a MMA/S73/VoC application is what should have been submitted. You want to vary the condition that relates to the approved drawings, normally no. 2 or no. 3. This type of application would not give the LPA consent to add anymore conditions. That could only be done via a revised/new Full application.

Edited November 17, 2021 by DevilDamo

[harry_angel]

Thanks for the clarification @DevilDamo

 

Can they try and inject an S106 into a Certificate of Lawfulness app?

 

And does a change of use app from outbuilding to dwelling entail a fresh/full app or can that be done under S73 too?

Edited November 18, 2021 by harry_angel
typo

[DevilDamo]

“Can they try and inject an S106 into a Certificate of Lawfulness app?”

No.

 

“And does a change of use app from outbuilding to dwelling entail a fresh/full app or can that be done under S73 too?”

A change of use will require a Full application. 

[Gus Potter]

On 16/11/2021 at 10:50, harry_angel said:

This is an interesting one for my fellow planning eager beavers...in essence:

 

• we submitted a Non-Material Amendment, to PP already secured
• the LPA are required to determine all NMAs within 28 days, per the info below, no longer period was agreed in writing so the 28 days stands
• they have missed this date, wildly, by fully 4 months
• with a normal app, one would then have the recourse to go to appeal via the planning inspectorate, but no such recourse exists for NMAs: you cannot appeal them
• begging the question: what is the "penalty" to the LPA for failing to determine this NMA in time? Can this be leveraged at all? Are the non-material amendments we've made now, automatically, lawful as a result of the LPA failing to meet the 28 day deadline?

 

"The time period for determination of a non-material amendment is 28 days, unless a longer period has been agreed in writing between the parties."

 

"There is no right of appeal for refusal or non-determination of non-material amendment applications.  If they are refused then the applicant would have to submit a S73 application or a new planning application instead."

 

 

 

 

 

I'm not an expert on English Planning as Scottish Based..

 

But in Scotland a domestic Planning application costs £202.

 

What would happen if you just submitted a fresh application, take the punt and see what they do? Explain that you felt forced to submit a new application as you had no response and you felt that this was the only way to get a reasoned response to your non material amendment ( called a non material variation in Scotland). Never tried it though..just a thought.

 

That would put them in a bind if you caveat it this way.

 

Harry yes you can try and leveraged but if you have burnt your boats already by playing hard ball then frankly you are stuffed and need to suck it up. If you have spent a bit of time building relationships and engaged with the planners early on then it should be easy..

 

 

 

 

 

 

 

 

 

 

 

 

Edited November 19, 2021 by Gus Potter

[Hilldes]

We got a formal response to our NMA a couple of weeks back from LPA. I submitted the request about a year ago. We did however get an email from the case officer saying he was ok with the proposal in little more than the set period, so I considered that approval in writing and proceeded with the build.

[saveasteading]

On 16/11/2021 at 15:35, Dreadnaught said:

"if I do not hear from you by X then I shall deem approval to have been granted"

Agreed.  This would be seen as reasonable in any future argument so the planners would be unwise to pursue it.

 

You could make it even less combative by suggesting that you have the right to submit a formal planning application for the same matter, but you don't wish to be awkward and appreciate that it would not not help their workload.