Appeal 3332398

The appeal is allowed and planning permission is granted for part single, part two storey rear extension following demolition of existing two storey outrigger. Roof extension involving 2no rear dormers and 2no front facing rooflights. Changes to front and rear fenestrations at [site address] , Finchley, Barnet, London, [postcode] in accordance with the application Ref 23/3555/S73 dated 15 August 2023, without compliance with condition number 1 previously imposed on planning permission Ref 22/5735/HSE dated 19 June 2023 and subject to the following conditions:

The development hereby permitted shall be carried out in accordance with the following approved plans: 18/3189/1, 18/3189/5, 18/3189/7, 18/3189/9, 18/3189/106B, 18/3189/110B, 18/3189/112B, 18/3189/11B.

The materials to be used in the construction of the external surfaces of the building hereby permitted shall, except as shown otherwise on the approved plans, match those used in the existing building.

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any order revoking and re-enacting that Order with or without modification), no windows or doors other than those expressly authorised by this permission shall be constructed in the side elevations facing 21 and [address].

An application for costs was made by [name] against the Council of the London Borough of Barnet. This application is the subject of a separate decision.

Planning permission was granted on 19 June 2023 for “Part single, part two storey rear extension following demolition of existing two storey outrigger. Roof extension involving 2no rear dormers and 2no front facing rooflight. Changes to front and rear fenestrations” under reference 22/5735/HSE.

The application which is the subject of this appeal was submitted under s73 of the Town and Country Planning Act, 1990 to vary condition 1 of the original planning permission by substituting a different set of plans to those approved. The differences proposed comprise roof extensions to the front elevation to add a gable above a first floor window and a hipped roof above an existing flat roofed two storey bay, and brick cladding to the lower part of the ground floor front elevation.

The Planning Practice Guidance (PPG) states in Paragraph: 013 [name]: 17a-[phone] that a s73 application “can be used to make a material amendment by varying or removing conditions associated with a planning permission. There is no statutory limit on the degree of change permissible to conditions under s73, but the change must only relate to conditions and not to the operative part of the permission.” The operative part of the permission is the description of development. The PPG also states that s73 cannot be used to change the description of the development. This is supported by several court decisions including Finney v [name] & Ors [2019] [name] 1868 dated 5 November 2019.

The appellant correctly used the original description of development on the application form submitted to the Council. This was changed by the Council but as this is clearly beyond the scope of a s73 application I have used the original description of development in the banner heading and decision above and in my consideration of the appeal.

The plans first submitted with the application showed three rooflights on the front elevation. However, following concerns raised by the Council on 5 October 2 2023 that the proposed changes would require an alteration to the description of development on the original permission and hence fell outside the scope of s73, the appellant submitted revised plans on 6 October 2023, deleting the third rooflight, and asked that these be substituted for the drawings previously submitted. The Council responded on 9 October 2023 stating that the proposed roof extensions would in any case necessitate a change to the description of development and hence the application would be refused. The appellant was invited to withdraw the application but responded the same day suggesting that the Council was unreasonable in not accepting that the changes fell within the scope of s73 and asking for the application to be determined. It was refused on 10 October 2023 under delegated powers.

The plans cited on the refusal notice are those first submitted with the s73 application and not the substituted plans sent to the Council. It is unclear why the Council failed to substitute the plans as requested. However, since the only alteration is a minor change to delete the additional front rooflight which would also remove any direct conflict with the description of development on the original planning permission, I am satisfied that accepting the substituted drawings would not be procedurally unfair to any parties. For the avoidance of doubt, my decision is therefore based on [name] 18/3189/1, 18/3189/5, 18/3189/7, 18/3189/9, 18/3189/106B, 18/3189/110B, 18/3189/112B, 18/3189/11B.

The Council raises no objection to the proposed development on any other grounds, finding specifically in its delegated report that there would be no detriment to character or appearance or living conditions. I agree with these

It is therefore concluded on the main issue that the proposed development falls within the scope of a s73 application and specifically the proposed amendments to the scheme would not conflict with, necessitate, or amount to a fundamental change to the description of development set out in the original permission ref 22/5735/HSE. 16.In view of my conclusion and the lack of any other material objection to the proposed alterations, the appeal should be allowed.