New design, new planning permission?

Is a new permission required for design changes after planning permission has been granted?

It is not unusual for details of developments to be varied after planning permission has been granted. Reasons include cost, market changes, and new personnel (eg. the appointed contractor might suggest a different approach).

There are 3 options: non-material change; varying a condition; and varying the permission itself. Another option will be introduced in the future for England - applications for permission not substantially different from existing permission.

These procedures can also be used for changes during the operation of the development (eg. varying a wind farm consent condition to extend the operational life).

Non-material changes 

[England and Wales – section 96A; Scotland – section 64]

This option is attractive because it is a relatively informal procedure. However, it depends on the judgment of the planning officer whether the proposed change is "not material".

Variation of planning condition

[E+W - section 73; S - section 42]

If the change is material, can it be achieved by varying one of the conditions imposed on the planning permission (eg. substituting a new drawing)?

An advantage for the developer is that there is no risk of losing the permission - the planning authority can only decide whether to change the condition(s). If the application is granted, the new permission sits alongside the original permission, giving the developer the option of which to implement.

This is a formal application process, open to public participation. In Scotland, the pre-application consultation requirements do not apply.

The application must be decided in accordance with the provisions of the development plan, unless material considerations indicate otherwise.

In Scotland, the Court of Session indicated that a new planning policy might be enforced with more vigour where development has not commenced, in contrast to the situation where the planning permission has been implemented to a substantial extent.

Court decisions on varying planning conditions:

• a substantial or fundamental change may be sought – eg. omission of a 33kV substation (Fiske); substitution of a new house design, with a similar footprint to the originally approved design (Armstrong)
• cannot be inherently inconsistent with the description of the development – eg. substituting a drawing showing wind turbines with a tip height of 125m, when the development description in the original permission referred to "tip height of up to 100m" (Finney)

In England, the section 73 procedure cannot be used to extend the time limit for implementation of the permission; there is no such limitation in the Scottish section 42 procedure.

New planning application

There is no formal procedure to vary a planning permission. Although applications might be described as variation of a planning permission, in law they are actually fresh applications for planning permission.

The full planning application procedure applies, although the original planning permission is a material consideration.

The exception is electricity generation projects consented under section 36 of the Electricity Act: section 36C provides a variation procedure.

In future – applications for permission not substantially different from existing permission

A fourth option is to be introduced in England sometime in the future – the opportunity to apply for permission not substantially different from existing permission (section 73B).

The advantage of this procedure will be the limit placed on the planning authority to restrict its consideration to the difference from the existing permission.

It will inevitably lead to disputes about interpretation of "substantially different". In a different context, there was a dispute about whether a new wind farm application was of the "same character" as the existing wind farm permission. Although there was no change to the number of turbines, the new application had taller turbines, requiring aviation lighting. In an initial ruling on validity, an appeal reporter decided those differences did not change the character of the development.