Appeal 6001934

The appeal is dismissed.

[name] 2024/3497/P (the original permission) was granted in August 2025 for the development described in the banner heading above. At the time of my visit, development had not commenced, and the single-storey commercial building approved for demolition remained intact.

The application subject to the appeal seeks to vary the approved plans under Section 73 (S73) of the Town and Country Planning Act 1990 (as amended).

The main issues are: • whether the obligations necessary to make the development acceptable in planning terms would be secured; and • the effect of varying the condition on the living conditions of the occupiers of neighbouring buildings, with particular regard to the effect of the first-floor massing of the proposed development on the outlook and sense of enclosure for the occupiers of No [address].

The original permission was granted subject to a section 106 (S106) agreement securing a car‐free arrangement, a Construction Management Plan, and an associated bond. The completed agreement provided by the parties confirms that it is expressly tied to the original permission and to the “Development”, defined by reference to the drawings and documents approved under that permission. The agreement contains no provision for its obligations to apply to, or continue in effect, for any subsequent permission granted under S73, nor any more general clause binding the obligations to the land.

Both main parties were invited to comment on the implications of the S106 agreement for this appeal. Aside from each providing a copy of the agreement, neither party offered substantive views on the effect of the agreement on a new permission granted under S73, nor whether the obligations previously secured remain necessary to make the development acceptable in planning terms.

The Planning Practice Guidance (the PPG) explains that permission granted under S73 takes effect as a new, independent permission to carry out the same development as previously permitted subject to new or amended conditions. The new permission would sit alongside the original permission, which remains intact and unamended. It is therefore open to the applicant to decide whether to implement the new permission or the one originally granted.

The PPG also states that if the original permission was subject to a planning obligation, this may need to be the subject of a deed of variation. Since development must be carried out in accordance with the permission and any associated legal agreements, it follows that where planning obligations are necessary to make the development acceptable, they must be secured in relation to the new permission arising under S73.

In this case, the parties have not supplied a new agreement or deed of variation capable of binding a new permission under S73, nor have they provided evidence that the previously secured obligations are no longer necessary. In the absence of evidence to the contrary, and noting that the Council judged these obligations to be necessary when granting the original permission, I am minded to conclude that they remain necessary. This conclusion accords with paragraph 58 of the National Planning Policy Framework (the Framework), which defines the tests for planning obligations, including the requirement that such obligations be necessary to make the development acceptable.

Accordingly, if I were to allow the appeal, the obligations necessary to make the development acceptable in planning terms would not be secured. On that basis, I conclude that the development would fail to comply with the requirements of paragraph 58 of the Framework, and the provisions of the PPG regarding the determination of applications under S73.

The proposal seeks to vary the approved plans to provide additional floorspace at first and second floor level. At first floor, the rear elevation would be extended to the site boundary with No [address] (No 54), matching the footprint already approved at ground floor and reflecting the established relationship seen between several properties to the east on [address] and their [address] counterparts.

No 54 is a four-storey terraced building with additional accommodation in its mansard roof. Its rear ground-floor abuts the shared boundary with the appeal property, above which lies an external terrace serving the first-floor flat. The terrace sits slightly higher than the proposed first-floor level of the appeal scheme, and the Council notes that it represents the sole private outdoor space available to that flat.

Under the original permission, the proposed first-floor rear elevation would be set back around 7.3 metres from the rear windows of No 54, a separation that the Council considered would preserve adequate outlook and limit enclosure. The revised plans would reduce that distance by extending the first-floor massing to the shared boundary.

I acknowledge that the relationship between the buildings would change. However, the key issue is whether the incremental increase in massing, relative to the original permission, would result in a materially harmful loss of outlook or an unacceptable sense of enclosure for the occupiers of No 54. Based on the evidence and my observations, I do not find that it would. The approved scheme would already introduce a substantial built form at close quarters, and bringing the first-floor wall to the boundary would not fundamentally alter this impact. It would also align with the prevailing character of its surroundings, including the adjoining building at No [address] and many buildings further along the terrace to the east, where similar boundary relationships exist.

The terrace at No 54 would retain views over the proposed roof, and whilst there would be a marginal reduction in visible sky and more limited views of adjacent elevations, this would not amount to a materially harmful loss of outlook in what is characteristically an enclosed urban setting. Whilst the terrace has clear value as private amenity space, there is no substantive policy conflict or technical evidence before me to convincingly demonstrate that the proposed increase in massing would give rise to a harmful or unacceptably enclosed environment, either within the flat at No [address].

For these reasons, I conclude that the revised plans would not cause unacceptable harm to the living conditions of occupiers at No [address] in relation to outlook or sense of enclosure. Accordingly, the proposal would accord with Policy A1 of the Camden Local Plan 2017, which seeks to ensure that the amenity of communities, occupiers and neighbours is protected.

I have found that the proposal would not result in harmful effects on the living conditions of neighbouring occupiers. However, this absence of harm is a neutral factor and does not outweigh the failure to secure the planning obligations necessary to make the development acceptable in planning terms. As such, and having regard to all other matters raised, I conclude that the appeal should be dismissed.