Appeal 6004257

The appeal is dismissed.

An application for an award of costs was made by [name] against Tonbridge and Malling Borough Council. This application is the subject of a separate decision.

As a part of their appeal submission the appellant has provided a [name]. The appeals procedural1 guide makes it clear that the appeal process should not be used to evolve a scheme, and it is important that what is considered by the Inspector is essentially what was considered by the Council, and on which interests peoples’ views were sought.

In this case, the parking plan was submitted in response to the Council’s second reason for refusal. The submitted information does not fundamentally change the proposed development, and the parties have had the opportunity to comment as a part of the appeal process. As such, I am satisfied that no prejudice would occur were I to consider the information in my determination of the appeal. I have proceeded on this basis. 1 Procedural Guide: Planning appeals – England. For appeals relating to applications dated on or before 31 March 2026.

The planning permission for the conversion of the appeal property into residential accommodation includes condition 4, which restricts the occupation in Maltings 2 to persons aged 55 or over. The application subject to this appeal seeks to vary condition 4 to allow the appeal site (flat 26) to be occupied without an age restriction.

Thus, the main issues are: • whether the proposed development is within the scope of section 73 of the Town and Country Planning Act 1990 (as amended) (the Act), and if so; • the effect of the proposal on parking provision; and • the effect of the proposal on the provision of older persons’ accommodation within the Borough.

s73 of 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. Whilst it has been held that the scope of s73 is not limited to minor material amendments2, case law3 has established that an application under s73 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 would include the description of the development for which the original permission was granted.

It therefore follows that the purpose of s73 is not to amend the description of development and that, if amending a condition would result in a conflict between it and the description of development, then that particular amendment is beyond the scope of s73.

The original description of development is explicit that the flats within Maltings 2 have permission as elderly persons flats. Condition 4 provides clarification that the occupation of the flats within Maltings 2 shall be restricted to persons aged 55 or over.

While the housing development as a whole would remain in a mix of age restricted and non-restricted flats, removing the age restriction placed upon the appeal flat would allow occupation by persons of any age and would result in the unit no longer being exclusively available to elderly persons. This would be in direct conflict with the original description of the development, which clearly refers to the conversion of Maltings 2 into elderly persons flats. Therefore, irrespective of previous planning permissions, the proposal would introduce a fundamental inconsistency between the condition and the description of development contained in the notice of the original permission.

Consequently, the appeal scheme would affect the operative part of the original permission and conflict with the description of development. As a result, the appeal 2 Armstrong v SSLUHC [2023] EWHC176 3 Finney v [name], 2019 WL 05699117 (2019) scheme would necessitate a change to the description of development, which is beyond the scope of s73.

I have found above that the appeal before me cannot be determined under the provisions of section 73 of the Act. The effect is that no further action can be taken on the appeal and so the merits or otherwise of the proposal need not be considered.

The appeal flat is within Maltings 2 and this building, together with Maltings 1, are [name] listed buildings. The site lies within the Hadlow Conservation Area (CA). Accordingly, I have had regard to the statutory duties set out in sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

The large buildings are the former maltings of the [name] which were built in 1859 and converted to flats in 1988. Their significance derives, in part, from their layout, design and materials, including buff-coloured Flemish bond brick with bands of red brick and red brick dressings and slate roof. The CA derives its significance, in part, from the distinctive features at the southwestern entrance to Hadlow, which includes the former brewery buildings and Castle.

While the proposal seeks to vary the occupancy condition, the flat would nevertheless remain in residential use and the proposal does not comprise any external or internal alterations to the building. As such, the scheme would preserve the listed buildings and the features of special architectural or historic interest which they possess, and would preserve the character or appearance of the CA.

For the reasons given above the appeal is dismissed.