Appeal 6004084

The appeal is dismissed.

Section 73 of the Town and Country Planning Act 1990 (the Act) allows for a grant of permission for the development of land without compliance with conditions subject to which a previous permission was granted.

[name] v [name] & Others [2019] EWCA 1868 (Finney), the Court of Appeal held that an application under section 73 may not be used to obtain a permission that would require a variation to the terms of the “operative” part of the planning permission, which includes the description of the development for which the original planning permission was granted.

During the consideration of the appeal, I invited both parties to provide submissions as to whether or not this proposal would be acceptable in terms of section 73 in light of the judgment in Finney.

Planning permission was granted for the part-time use of the premises for hairdressing salon purposes subject to several conditions, one of which restricted the hours of operation to half days on Fridays and Saturdays only. The appeal before me seeks to amend that condition as the appellant seeks to extend the hours of business.

Given the above, the main issue is whether variation of the condition would conflict with the description of development and thus fall outside the scope of section 73 of the Act.

The appeal proposal seeks to amend Condition 4 to allow the hairdressing salon to operate between 10:00 and 18:00 on Tuesdays, 10:00 and 17:00 on Wednesdays, 10:00 and 18:00 on Thursdays, 09:00 and 18:00 on Fridays and 08:30 and 17:00 on Saturdays. The March 2025 permission described the development as the “part time use” of the integral garage for hairdressing salon purposes ancillary to the occupation of the main dwelling.

The appellant contends that the use would remain part-time and continue to be ancillary to the dwelling, indicating that the business would operate for a limited number of hours per week. However, no restriction on the overall weekly hours of operation is secured within the suggested variation of condition, and the extent of use would instead be defined by the daily opening times proposed. Consequently, the use could lawfully operate throughout all permitted hours.

In these circumstances, it is my planning judgment that extending the use to 5 days with substantial daily business hours would amount in substance to a full-time operation. Amending condition 4 to allow this pattern of use would therefore place the condition in conflict with the description of development. That conflict cannot lawfully be resolved by an application under section 73 of the Act. Whether the appellant considers the business to remain small-scale or ancillary is not determinative of the section 73 issue before me. I therefore conclude that the proposal falls outside the scope of section 73 in light of Finney.

I note that representations have been made in support of the proposal. However, given my finding that the proposed variation falls outside the scope of section 73, these matters do not alter my conclusion.

Given my finding on the validity of the appeal, I am unable to express a view on the planning merits of the proposal, which would need to be the subject of a fresh planning application, as to do so would fetter a future decision maker.

For the reasons given above the appeal should be dismissed.