Following on from Caroline's blog last friday, I can report that DCLG has issued updated guidance on these procedures.

A few thoughts occurred as I looked through this today;

Extending planning permission - para 28 of the guidance points out that since most s 106 agreements are linked to a particular planning permission, you may need a new 106 in order that it can regulate the development under what will be a new permission. Extensions under this procedure are appropriate for planning permissions granted on or before 1 October 2009 and of course since 6 April 2010 the CIL regulations have given statutory effect to circular 5/05 on planning obligations. This means that, where the planning permission you are extending relates to CIL development (mostly new buildings - but regardless of whether CIL has been adopted in your area), you should not assume that the new 106 need simply carry forward the same package of obligations to the new permission. Any new 106 must be considered in light of the CIL regulations.

There may be cases where, say, a contribution was agreed in a 106 relating to the orginal permission but, on reflection, this may not be necessary as required by the circular. The application of the CIL regulations would in that case require that any new 106 should not contain that contribution - but this may lead to practical issues in the management of the extension application.

Non material changes - the guidance reminds us that you need an interest in the relevant land to make use of this procedure and it gives examples of the type of interests which will qualify. One of those is an interest created by an option so that an option holder can make an application for a non material change. Readers of this blog may recall that we have pointed out (and disagreed with) DCLG's position on options in the context of s 106 agreements where the advice currently is that these are not interests for the purpose of s 106. Scope for joining up the thinking here?

Also, property professionals should note that the original planning permission not only still stands, but will not be physically amended. Instead, the letter granting the application (there is no prescribed form) should be read alongside the permission. So it is important to remember that a decision notice in the form of a planning permission is not necessarily the final word.

Minor material amendments - here the guidance points out that this procedure (under s 73) can only be used where the "amendment" can be achieved by "varying" a condition. So if the amendment you need is to a plan/drawing but there is no condition requiring adherance to a list of approved drawings, you will not be able to achieve the "amendment" through this procedure alone. Instead you need to make an application for a non material change (under s 96A) to the original permission, in order to add such a condition, then your s 73 application can attach to that new condition. I see no reason not to run the two applications in tandem as long as the s 96A application is determined first.