Appeal 3284781

The appeal is dismissed.

The site visit was undertaken by an Appeal Planning Officer whose recommendation is set out below and to which the Inspector has had regard before deciding the appeal.

Section 73 of the Town and Country Planning Act 1990 (the Act) makes provision to apply for planning permission to carry out development without complying with a condition or conditions to which an earlier planning permission was granted. The practical effect of Section 73 is that, if the application is permitted, a new planning permission is created that is subject to different conditions. The original planning permission remains intact and un-amended. The developer then has the choice of which permission to implement.

The original planning permission under reference HGY/2020/0451, dated 8 April 2020, was described on the decision notice as follows: Erection of single storey side and rear 'wraparound' extension; installation of zinc cladding to existing rear dormer roof extension and enlargement and alterations to its windows; Insertion of roof lights in rear dormer and rear roof slope.

The application subject of this appeal, planning reference HGY/2021/1745, refused on 4 August 2021, sought the Variation of condition 2 (approved plans) of planning permission reference HGY/2020/0451 to amend roof/loft level, including rear dormer changes. The application was refused on the grounds of its impact upon the character and appearance of the property and surrounding area.

The Council accepted the application under S73, however, the recent judgement in Finney v [name] and Others [2019] [name] 1868 clarified that such applications cannot permit development that goes beyond the operative part of the original planning permission i.e. beyond the description of development for the originally approved scheme.

The parties were contacted with regard to that judgement to seek their views on whether the amended scheme fell within the scope of that which could be considered within the scope of and application under S73. The Council did not respond to the request, but I have considered the response of the appellant in my reasoning below. It would not be lawful to grant planning permission under S73 for a development that was substantially beyond the description of that originally approved. The appropriate course of action would be to submit a new planning application which could be consulted on and considered accordingly.

In view of the above, the first main issue is to consider whether the application is one that can be considered under the scope of S73. If not, the appropriate course of action would be to dismiss the appeal so that a new planning application could be made. If the proposal would fall within the scope of S73 then the second main issue of the effect on the character and appearance of the building and surrounding area will be considered.

Having regard to the description and the approved plans of the original approved scheme, this did not include an extension of the existing dormer over the outrigger at the rear of the property. Rather, the proposal included elements to clad the dormer and make alterations to its windows and add a rooflight, as well as a ground floor extension and other minor alterations.

It is considered that the appeal proposal represents a fundamental alteration to the original scheme that would result in a development of a significantly different nature from that which was originally granted planning permission. This is because it involves a substantial addition to the existing dormer window over a section of roof that is currently unaltered and that was not being significantly changed by the original permission.

The additional roof extension would project out beyond the rear facing plane of the existing dormer by a significant degree, directly along the boundary between the appeal property and the neighbouring dwelling. In the context of a householder application in a tightly knit urban area, the addition of a substantial roof extension in close proximity to neighbouring properties cannot be considered as a minor material amendment to the original scheme in my view. It would introduce a form of development that was completely absent from the description of development originally approved.

As such, the proposal does not fall within the limited scope of what may be considered under S73 and the appeal must fail for this reason. I recognise that the appellant may be aggrieved by this decision and that they followed advice from the Council at the time of making the application. Nonetheless, any appeal decision must comply with relevant caselaw. In light of the Finney judgement, any decision to allow the proposal, if the Inspector was so minded, would not be legally sound and could be subject to legal challenge. In those circumstances, the most appropriate course of action is to dismiss the appeal and allow the appellant to submit a new planning application to the Council, if that is what they choose to do.

I have considered all the submitted evidence and the Appeal Planning Officer’s report and, on that basis, I agree with the recommendation and shall dismiss the appeal.