The Battle of Fulford strikes again…

Claire Temple, Director at Planning Potential’s Harrogate office, gives her take on the recent Fulford Parish Council vs York City Council Court of Appeal decision.

On this occasion, the battle of Fulford is not what my daughter (who is currently taking her GCSE History) would refer to as a ‘stabby’ battle. In today’s battle, representations and legal challenge have thankfully replaced swords and crossbows. Fulford Parish Council brought a challenge against York City Council following the City’s approval of a non-material amendment to a conditional reserved matters consent. The case in question relates to the site of the 1066 ‘stabby’ battle and is an interesting read for anyone into Norman history, bat ‘hop-overs’, or indeed planning case law.

The non-material amendment related to minor, or rather ‘non-material’, changes to approved house types and changes to the bat mitigation strategy (this is where bat hop-overs come in). The Parish Council contended that Section 96A of the Town and Country Planning Act (the part that allows for non-material amendments to a planning permission) does not allow for changes to a reserved matters application as it is not a ‘planning permission’ but an ‘approval’. Previous case law has set out a distinction between the two.

Lord Justice Lewison dismissed the appeal on the basis that whilst there is a distinction – a reserved matters application is not an application for permission – that did not answer the question raised by the appeal. He concluded that planning permission as referred to under Section 96A is a package that “includes the permission and conditions imposed at the time or subsequent to the grant of permission”, this would therefore include conditions attached to reserved matters.

The power under Section 96A is restricted to non-material changes only. "It follows that a change in approved reserved matters can have no material impact”. He goes on to state that "Provided the initial application for the approval of reserved matters is made within the time limit of the Act, I can see no good reason for outlawing non-material changes made later”. The case confirms that Section 96A can be used retrospectively, for example in instances where there are minor differences between the layout drawings and ‘as built’, although this was not the case in this particular appeal.

If I haven’t learnt anything new about the difference between an outline and reserved matters consent through this decision, I have certainly been encouraged to go and find out what a bat ‘hop-over’ is.

Claire Temple, Director