Islington Council received around 60 objections to Peabody’s recent application to change the description of the development they have permission to build – a huge number for an application of this type. You can read the objection submitted by CP4H’s Board below. Many thanks to our local residents and to Planning Aid for London for their help in analysing the application.
We are writing to object to the application reference: P2025/1413/NMA for a Non-Material Amendment to the extant permission reference: P2021/3273/FUL at Holloway Park.
Section 96a of the Town and Country Planning Act 1990 makes clear that it is the judgement of the local authority as to whether a change is material or not. A s96a is limited in scope and can only alter an existing permission, providing the amendment is non-material, and is not able to result in a new permission.
There exist various cases which determine whether the extent of a change should be considered material or non-material. In Burroughs Day v Bristol City Council [1996], the Inspector stated that for a change to be material it had to be of significance, substance and of consequence. In Bernard Wheatcroft Ltd v SoS [1981] it was concluded that the method of deciding whether amendments to permissions should be allowed was “whether the development permitted is in substance different from that applied for“. In the case at Holloway Park, the removal of key numbers and heights from the description of development should be considered to result in a substantially different development.
There have been recent decisions concerning the extent of s96a applications to alter the description of development.
In R (Aysen Dennis) v London Borough of Southwark and Notting Hill Genesis (NHG) [2024] EWHC 57 (Admin) the insertion of the word “severable” into the description of development was found to be a material change and resulted in overlapping and incompatible permissions. This had particular ramifications for the phased development, as is also the case at Holloway Park.
In this case, the proposed alteration of the description of development seeks to remove key elements (building heights and numbers of units) from the permitted description:
Phased comprehensive redevelopment including demolition of existing structures; site preparation and enabling works; and the construction of 985 residential homes including 60 extra care homes (Use Class C3), a Women’s Building (Use Class F.2) and flexible commercial floorspace (Use Class E) in buildings of up to 14 storeys in height; highways/access works; landscaping; pedestrian and cycle connections, publicly accessible park; car (blue badge) and cycle parking; and other associated works.
It is considered, in light of the recent case decisions, that this should be considered a material change, beyond the scope of a s96a application. Despite ‘no new scheme revisions’ coming forward as a part of the non-material amendment application, the removal of key parts of development from the description constitutes a material change. The proposed conditions suggested by the applicant, and plans for phase 2 and 3 of development, suggest that a forthcoming s73 application would intend to further alter the approved scheme, opening the doors for significant change to the approved unit numbers and building heights with less scope for consultation and engagement than a full planning application.
If LB Islington approves this Section 96a amendment, it sets a concerning procedural precedent with implications far beyond Holloway Park. By allowing key development parameters (such as unit numbers, building heights) to be removed from the formal description of development and relocated into planning conditions, the Council would enable future intensification via Section 73 applications, without triggering full opportunities for renewed and meaningful public consultation or updated environmental assessment and other forms of scrutiny. This approach risks normalising the use of Section 96A as a post-approval mechanism to dilute planning controls, a loophole that could be widely replicated by developers across London. The integrity of the planning system depends on resisting such backdoor alterations to consent.
In light of the evidence outlined above, it is considered that the proposed changes would result in material alterations to the extant permission, beyond the scope of section 96a of the Town and Country Planning Act 1990. The proposed amended description of development could result in a different permission than approved. These are material planning considerations upon which significant weight should be placed. Indeed, the purpose of the planning system is to ensure that detrimental impacts of developments are fully considered, so that harmful development is prevented and positive development encouraged.
We strongly object to the proposed amendment and consider this to result in a material change to the extant permission and request that the application be refused accordingly.