In today’s volatile markets the commercial viability of a project can change in the time it takes to implement a hard-won planning consent and even after works have begun.
It may therefore be necessary to amend a scheme to maintain its profitability and viability. To accommodate such changes, planning schemes are often amended or a new application made.
The case involving Vue Cinema’s challenge to York Council is a reminder of how difficult it can be for development to proceed smoothly when the consented scheme needs to be changed in order to ensure viability of the project. Developers have two choices if they can avoid a fresh planning application and the one they use depends on how significant the change is to the consented scheme.
Option 1: Apply for a “non-material amendment” under Section 96A of the Town & Country Planning Act 1990 (“TCPA”); or
Option 2: Apply under Section 73 of the TCPA to “develop land without compliance with conditions” that were previously attached to the consented scheme and/or to make “minor material amendments” to the consented scheme.
The differences between these processes are:
|Non-Material Amendment (s96)||Removal of Conditions/Minor Material Amendments (s73)|
Administratively easier, standard form application and a relatively simple process reflecting the fact that the change is not material.
|The application is treated as new planning application with all the usual time limits and processes including consultation, EIAs etc.|
|Local planning authority must have regard to the effect of the change on the planning permission as originally granted.||The local authority consider the application against the development plan and usual material considerations as well as the original planning permission conditions and make their decision based on national and development plan policies which may be significant if any have changed significantly since the original grant.|
|The planning permission is amended so the existing permission with all its deadlines and dates remains unchanged and existing Section 106 and 278 Agreements continue to apply.||A new planning permission is granted as a result which means new Section 106 and 278 agreements are required and although there are processes to re-state the s106 agreements already in place, this is never as fast as developers really want it to be if the existing s106 is affected by the variation.
Crucially there is a right to appeal.
In R (on the application of Vue Entertainment Ltd) v City of York Council Vue Cinemas challenged a permission for the development of a community stadium. Vue operated a (different) nearby 12 screen cinema and had commercial concerns about the cinema to be operated from the stadium development.
A s73 application was made to enable the development to proceed without compliance with the condition that required development in accordance with specified drawings. Those drawings showed a 12 screen and 2,000 capacity cinema. The changed plans showed a 13 screen 2,400 capacity cinema. Vue objected that this “minor amendment” should be permitted. The court found –
- the permission as a whole had to be considered to see if the change was so fundamental that the terms of the permission itself was changed by the variation;
- this change was only to the part of the permission that related to the cinema;
- Vue had been consulted and made representations. They were not prejudiced by the change; and
- the planning authority had the power to grant this new permission.
In conclusion, developers are well advised to try to obtain a workable and malleable consent that has the capacity for minor (preferably minor non-material) variations in order schemes can be amended and altered to cater for ever changing market demand and volatility.