Appeal 6004485

The appeal is allowed and planning permission is granted for the variation of Condition: 2 ([name]) and 3 (Materials) of planning permission 2024/0295 (Part two/part single-storey front/side extension, roof extension incorporating an increase in ridge height to provide rooms in the roofspace) to alter materials for the roof and windows, to add ground and first floor windows to front/side elevations and to alter internal layout’ without complying with conditions attached to planning permission Ref 2024/2302 at [site address] in accordance with the terms of the application, Ref 2025/2676, subject to the following conditions:

The development hereby permitted shall be carried out in accordance with drawing nos Location Plan Rev 01, 11, 12 and 8.3.

The development shall not be erected other than in the following materials; walls - brick to match at ground floor and render to upper floor; roof - calderdale edge terracotta tiles; and, windows - white woodgrain upvc vertical sliding sash.

Prior to the first occupation of the development hereby permitted the 3 windows on the west elevation of the development, 1 shown to serve stairs via rooflight and 2 shown to serve bath and stairs on the first floor, hereby permitted shall be glazed with obscure glass that accords with level three obscurity as shown on the pilkington textured glass privacy levels (other glass suppliers are available) and only openable above a height of 1.7m above the internal floor level of the room to which it serves. The windows shall be permanently retained in that condition thereafter.

All flood mitigation measures shall be carried out in accordance with the approved details set out in the flood risk assessment prepared by [name] received on 08/05/2024.

Planning permission was originally granted for a part two/part single-storey front/side extension and a roof extension incorporating an increase in ridge height to provide rooms in the roofspace (Council ref: 2024/0295) (original permission). I saw on my site visit that extensions and alterations to [site address] are currently being implemented. The original permission was subsequently varied to alter the materials for the roof and windows, to add ground and first floor windows to front/side elevations and to alter internal layout (Council ref: 2024/2302) (varied permission).

The appeal relates to an application made under S73 which seeks to vary Conditions 2 and 3 of the varied permission. The proposed changes include demolishing garages, altering the fenestration, adding an additional rooflight and identifying allocated parking spaces.

Since the submission of the appeal, the Council has granted separate planning permission on 17 March 2026 to vary Condition 2 of the varied permission to remove bi-fold doors to the east elevation, to add a new window to the ground floor rear elevation, to add a new door to the front elevation and to add a front rooflight (Council ref: 2026/0161). These works incorporate some, but not all, elements of the appeal proposal.

The Officer report accompanying the Council’s decision makes it clear that its concerns only relate to whether or not the proposed demolition and allocation of parking fall within the scope of an application under S73, and whether the proposed parking arrangement would result in an awkward layout and the oversupply of parking.

The main issues are therefore:  whether or not the proposed variations can be considered within the scope of an application under S73; and  if so, whether or not varying the conditions would result in satisfactory parking provision.

S73 enables a planning authority to grant permission for the same development as previously permitted, subject to different conditions. Having regard to established case law1, permission granted under S73 cannot alter the operative part of the original planning permission, which includes the description of development. It follows that where amending a condition would result in a conflict between the new condition and the description of the development, that the particular amendment is beyond the powers of S73 and cannot be made.

The Planning Practice Guidance (PPG) advises that 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. In this case, the original description of development identified the principal components of the proposed development but does not set parameters concerning the precise dimensions or the presence of minor incidental elements, including demolition, that might reasonably accompany it.

The amended plans would continue to deliver the development originally described, and the demolition of the garages or the identification of allocated parking spaces would not fundamentally alter this. The demolition sought is to relatively modest buildings and would not alter or redefine the development authorised by the operative part of either the original or varied permissions.

I am therefore satisfied that the development proposed does fall within the scope of S73 and the appeal can proceed on this basis.

The Council raises concerns that due to the dimensions of the proposed parking spaces, the arrangement would result in an awkward layout and an overprovision of parking. However, the presence of two vehicle crossovers from [address]/[address] to provide off-street vehicle parking is an established feature of the site. The evidence does not indicate that additional areas of hardstanding would be required to facilitate the proposed arrangement, nor that the parking spaces would be permanently delineated or marked. Indeed, the appellant asserts that the proposed amendments would serve to rationalise the number of parking spaces on the site.

In these circumstances, although the overall level of parking may exceed the maximum standards set out in the Elmbridge Parking Supplementary Planning Document (2020), there is nothing to suggest that this would result in any demonstrable harm and parking spaces could continue to be provided on site clear of the public highway. Notably, the Local Highways Authority raised no objection to the application.

I conclude that varying the conditions would not result in an unsatisfactory parking provision. In this regard, there would be no conflict with Policy CS25 of the [name] (2011) and Policy DM7 of the Elmbridge Local Plan Development Management Plan (2015) which require maximum parking standards 1 Finney v [name] [2019] [name] 1868 and Fiske v Test Valley BC [2023] EWHC 2221 to be applied and for parking provision to be appropriate to the development proposed.

The PPG explains that decision notices granting planning permission under S73 should also restate those conditions attached to the earlier permission which continue to have effect. I shall therefore impose all conditions that I consider remain relevant.

Condition 2 of the varied permission has been amended to refer to the updated plans and has been renumbered as Condition 1. Although the application also sought a variation of Condition 3, this relates solely to the approved materials insofar as they are affected by the proposed amendments and has been renumbered as Condition 2. Conditions 4 and 5 have been re-imposed and renumbered as Conditions 3 and 4 respectively, as they remain relevant and necessary to the proposed development.

For the reasons given above the appeal should be allowed.