Appeal 6005524

The appeal is allowed and planning permission is granted for full planning permission consisting of 341 dwellings (Use Class C3) to include townhouses, duplexes and apartments in a series of separate buildings varying from 3 to 7 storeys, with associated car parking, servicing and plant, on site open space, pedestrian and vehicle access, landscaping and all associated works, including variation of approved condition 1, attached to 19/02247/MAF, to allow for removal of residential units from the top storey (7th storey) of [name], with them being added to [name] (to create a 6th storey) at Former Hazelwoods Food Ltd Site, [site address] , Bedford [postcode] in accordance with the application Ref 25/02212/M73, without compliance with condition number 1 previously imposed on planning permission Ref 25/00849/M73 dated 26 September 2025 and subject to the conditions in the attached schedule.

The original planning permission was granted in August 2021 under reference 19/02247/MAF for a residential development of 341 dwellings. During construction of the development a culvert was discovered which had an easement associated with it. This meant that amendments were required to the design and layout of the development. A Section 73 application (ref: 25/00849/M73) was submitted to amend condition 1 of the original permission to substitute the original plans. This was approved by the Council.

The appellant then sought to amend condition 1 of the approved Section 73 application (ref: 25/00849/M73) by seeking to amend the plans attached to that permission. The amended plans seek to overcome easement issues in relation to [name] by altering the layout and form of the building, alongside amendments to the orientation of [name].

The amendments to [name] include the removal of the southern wing and part of the west wing affected by the easement, with a revised layout providing parking in the area previously occupied by the southern wing. The 13 apartments lost due to the reduced footprint would be offset by increasing the height of the eastern wing of [name] by 2 to 3 storeys, to a maximum of 6 storeys.

The Council has raised no concerns regarding the alterations to [name] and, from the information before me, I have no reason to reach an alternate view. Moreover, the amendments to the orientation of [name] were subject to a separate Section 73 application (Ref: 25/02039/M73), which the Council confirms has been granted.

The Council’s sole reason for refusal relates to the scale of alterations proposed to [name]. They contend that the change in footprint and the increased bulk of the eastern wing would result in development that would differ materially from the approved permission. Consequently, they argue this goes beyond the scope of what is permissible under an application submitted under Section 73 (s73) of the Town and Country Planning Act 1990 (the Act).

It therefore follows that the main issue in the appeal is whether the proposal falls within the scope of an application made under S73 of the Act.

The Planning Practice Guidance (PPG) includes advice on “Flexible options for planning permissions.” The PPG sets out that issues may arise after planning permission has been granted which require modification of the approved proposals and that where these are fundamental or substantial a new planning application will need to be submitted.

The Council considers the changes would be substantial and, in this regard, has followed the advice in the PPG. However, notwithstanding this, following the [address]’s findings in Armstrong1, the PPG goes on to state that “an application made under s73 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”. As a result, the PPG no longer refers to a s73 application being a way to seek a “minor material amendment”.

This principle was reinforced by a recent Court of Appeal case2, which referenced Armstrong. The Judge reconfirmed that the legislation under s73 does not contain any language that prevents conditions making substantial or fundamental alterations to the permitted development.

The changes arising from the amended plans would not alter the operative part of the permission, as the scheme would still involve the provision of 341 dwellings including townhouses, duplexes and apartments in a series of separate buildings varying from 3 to 7 storeys.

Consequently, given that the proposed substitution of plans would not change the operative part of the description of development, and that caselaw has established that under s73 there is no requirement for changes to be minor, I am satisfied that the proposal to vary condition 1 and substitute new plans, incorporating substantial modifications to [name], does fall within the scope of s73 of the Act.

The reason for refusal of the application related solely to the technical matter outlined above. However, the [name] has provided comments on the planning merits of the case, including the impact of the proposal on neighbouring amenity, the living standards of future occupiers, highways, flooding and drainage, with no planning policy conflict identified. From the evidence before me, I find no reason to reach a different view.

With regard to the impacts of the proposal on the character and appearance of the area, the Council has not raised any specific concerns or identified any policy 1 Ref: [name] v SSLUHC v Cornwall Council [2023] EWHC 142 2 Ref: Test Valley Borough Council v [name] [2024] [name] 1541 conflict. The southern wing of [name] would be removed and replaced by car parking. While the number of parking spaces would not materially increase, they would be more visible, however, due to boundary treatment and landscaping this would not be perceptible from outside the site boundary.

[name] is located towards the southern corner of the site, with very limited visibility from [address]. The height of the eastern wing of [name] would be increased by an additional 2 to 3 storeys. This proposed height would align with the northern wing; thus, it would not appear as an incongruous alteration and would utilise materials that match the rest of the development. The eastern wing is also located next to the site boundary adjacent to the railway line and would replicate the same façade design previously approved.

When looking at the scheme as a whole, the revised design would assimilate well with the existing development and would not have an adverse effect on the character and appearance of the area. It would therefore accord with Policies 28S 30 and 37 of the Bedford Borough Council Local Plan 2030 (adopted 2020) (LP). Collectively, amongst other matters, these seek development of high quality design that has a positive relationship with the character of the surrounding area and landscape.

A signed Section 106 legal agreement (s106) was submitted with the original planning application. Both parties agree that the wording within the s106 of the original permission sets out that it would apply to any subsequent planning permissions arising from applications made via Section 73. As such, the provisions within the original s106 would still be secured and as the number of units has not changed, no deed of variation is required.

Under a s73 application, the original permission is not at risk and remains intact and unaltered and a new planning permission is created. The PPG makes clear that decision notices for the grant of planning permission under s73 should also restate the conditions imposed on earlier permissions that continue to have effect.

[name] have no information before me about the status of the other conditions imposed on the original planning permission, I shall impose all those that I consider remain relevant. In the event that some have in fact been discharged, that is a matter which can be addressed by the parties.

Condition 1 is necessary to define the approved plans and documents in the interests of certainty. Conditions 2,3,4,5,6 and 7 are necessary to ensure highway safety and the provision of appropriate parking and cycling facilities. To protect the living conditions of existing neighbours and future occupiers, conditions 8, 9, 12 and 19 are necessary.

To ensure a satisfactory appearance to the development condition 10 is necessary, conditions 11 and 15 are necessary to ensure no adverse environmental effects and conditions 13 and 14 are necessary to ensure satisfactory drainage of the site.

Conditions 20 and 21 are necessary to ensure biodiversity is enhanced. To ensure satisfactory levels, condition 16 is necessary. To secure water efficiency measures condition 17 is necessary. Condition 18 is necessary to ensure sustainable means of transportation are maximised and to ensure open space is properly incorporated into the development condition 22 is necessary. Condition 23 is necessary to ensure an appropriate provision of accessible housing in accordance with Policy59S of the LP.

For the reasons given above I conclude that the appeal should succeed. I will grant a new planning permission, varying condition 1 and restating the undisputed

The development hereby permitted shall be carried out in accordance with the following plans and documents: Location Plan - V01 of 19/02247/MAF approved 14/08/21. [name] - V08A of 19/02247/MAF approved 14/08/21. [name] - V09A of 19/02247/MAF approved 14/08/21. [name] - V10A of 19/02247/MAF approved 14/08/21. [name] - V11A of 19/02247/MAF approved 14/08/21. [name] - V12A of 19/02247/MAF approved 14/08/21. [name] - V13A of 19/02247/MAF approved 14/08/21. [name] - V14A of 19/02247/MAF approved 14/08/21. [name] - V15A of 19/02247/MAF approved 14/08/21. [name] - V16A of 19/02247/MAF approved 14/08/21. [name] - V17A of 19/02247/MAF approved 14/08/21. [name] - V18 of 19/02247/MAF approved 14/08/21. [name] - V19 of 19/02247/MAF approved 14/08/21. [name] and [name] - V20 of 19/02247/MAF approved 14/08/21. [name] and [name] - V21 of 19/02247/MAF approved 14/08/21. [name] - V22C of 19/02247/MAF approved 14/08/21. [name] - V23C of 19/02247/MAF approved 14/08/21. [name] - V24C of 19/02247/MAF approved 14/08/21. [name] - V25C of 19/02247/MAF approved 14/08/21. [name] - V26C of 19/02247/MAF approved 14/08/21. [name] - V27C of 19/02247/MAF approved 14/08/21. [name] - V28C of 19/02247/MAF approved 14/08/21. [name] - V29C of 19/02247/MAF approved 14/08/21. [name] - V30C of 19/02247/MAF approved 14/08/21. [name] - V31C of 19/02247/MAF approved 14/08/21. [name] - V32C of 19/02247/MAF approved 14/08/21. [name] - V33D of 19/02247/MAF approved 14/08/21. Proposed Roof Plan - V36C of 19/02247/MAF approved 14/08/21. Proposed Roof Plan - V37C of 19/02247/MAF approved 14/08/21. [name] - V39A of 19/02247/MAF approved 14/08/21. Site Layout Existing - V41 of 19/02247/MAF approved 14/08/21. Design and [name] - V42 of 19/02247/MAF approved 14/08/21. Planning Statement - V43 of 19/02247/MAF approved 14/08/21. [name] - V44A of 19/02247/MAF approved 14/08/21. [name] - V45A of 19/02247/MAF approved 14/08/21. [name] - V46 of 19/02247/MAF approved 14/08/21. Flood Assessment - V47 of 19/02247/MAF approved 14/08/21. Transport Assessment - V48 of 19/02247/MAF approved 14/08/21. Tree Report - V49 of 19/02247/MAF approved 14/08/21. [name] - V50 of 19/02247/MAF approved 14/08/21. [name] - V51A of 19/02247/MAF approved 14/08/21. Travel Plan - V52 of 19/02247/MAF approved 14/08/21. Daylight/sunlight assessment - V53 of 19/02247/MAF approved 14/08/21. [name] - V54A of 19/02247/MAF approved 14/08/21. [name] - V55 of 19/02247/MAF approved 14/08/21. Ventilation/[name] - V56 of 19/02247/MAF approved 14/08/21. Air Quality Assessment - V57 of 19/02247/MAF approved 14/08/21. Design and [name] - V59 of 19/02247/MAF approved 14/08/21. [name], Floor and Section - V61 of 19/02247/MAF approved 14/08/21. [name], Floor and Section - V62 of 19/02247/MAF approved 14/08/21. [name], Floor and Section - V64 of 19/02247/MAF approved 14/08/21. [name], Floor and Section - V65 of 19/02247/MAF approved 14/08/21. [address] - V66 of 19/02247/MAF approved 14/08/21. [address] - V68 of 19/02247/MAF approved 14/08/21. Design and [name] - V69 of 19/02247/MAF approved 14/08/21. [name] - V70 of 19/02247/MAF approved 14/08/21. Landscaping Plan - V71B of 19/02247/MAF approved 14/08/21. [name] - V73B of 19/02247/MAF approved 14/08/21. [name] - V74B of 19/02247/MAF approved 14/08/21. [name] - V75B of 19/02247/MAF approved 14/08/21. [name] - V76B of 19/02247/MAF approved 14/08/21. [name] - V77 of 19/02247/MAF approved 14/08/21. [name] - V78 of 19/02247/MAF approved 14/08/21. Air Quality Assessment - V79 of 19/02247/MAF approved 14/08/21. Planning Statement - V80 of 19/02247/MAF approved 14/08/21. [name] – V81 of 19/02247/MAF approved 14/08/21. [name] – V01 of 25/00849/M73 approved 26/09/25. [name] – V02 of 25/00849/M73 approved 26/09/25. [name] – V03 of 25/00849/M73 approved 26/09/25. [name] – V04 of 25/00849/M73 approved 26/09/25. [name] – V05 of 25/00849/M73 approved 26/09/25. [name] – V06 of 25/00849/M73 approved 26/09/25. [name] – V07 of 25/00849/M73 approved 26/09/25. [name] – V08 of 25/00849/M73 approved 26/09/25. [name] – V09 of 25/00849/M73 approved 26/09/25. [name] – V10 of 25/00849/M73 approved 26/09/25. [name] – V11 of 25/00849/M73 approved 26/09/25. [name] – V12 of 25/00849/M73 approved 26/09/25. Roof Plan Proposed – V13 of 25/00849/M73 approved 26/09/25. [name] – V14 of 25/00849/M73 approved 26/09/25. [name] – V15 of 25/00849/M73 approved 26/09/25. [name] – V16 of 25/00849/M73 approved 26/09/25. [name] – V17 of 25/00849/M73 approved 26/09/25. [name] – V18 of 25/00849/M73 approved 26/09/25. [name] – V19 of 25/00849/M73 approved 26/09/25. [name] – V20 of 25/00849/M73 approved 26/09/25. [name] – V21 of 25/00849/M73 approved 26/09/25. [name] – V22 of 25/00849/M73 approved 26/09/25. [name] – V23 of 25/00849/M73 approved 26/09/25. [name] – V24 of 25/00849/M73 approved 26/09/25. [name] – V25 of 25/00849/M73 approved 26/09/25. Roof Plan Proposed – V26 of 25/00849/M73 approved 26/09/25. [name] – V27 of 25/00849/M73 approved 26/09/25. [name] – V28 of 25/00849/M73 approved 26/09/25. Proposed Site Plan 3052-CDA-00-SL-DR-A-09300 [name] - First Floor Plan 3052-CDA-BA-01-DR-A-09201-[name] - Second Floor Plan 3052-CDA-BA-02-DR-A-09202-[name] - Third Floor Plan 3052-CDA-BA-03-DR-A-09203-[name] - Fourth Floor Plan 3052-CDA-BA-04-DR-A-09204-[name] - Fifth Floor Plan 3052-CDA-BA-05-DR-A-09205-[name] - Ground Floor Plan 3052-CDA-BA-GF-DR-A-09200-[name] – Roof Plan 3052-CDA-BA-RF-DR-A-09206-[name] – [name] 01 3052-CDA-BA-ZZ-DR-A-09207-[name] – [name] 02 3052-CDA-BA-ZZ-DR-A-09208-[name] – [name] 03 3052-CDA-BA-ZZ-A-09209-[name] – [name] – Sheet 01 3052-CDA-BA-ZZ-DR-A-09210-[name] – [name] – Sheet 02 3052-CDA-BA-ZZ-DR-A-09211-[name] – [name] – Sheet 03 3052-CDA-BA-ZZ-DR-A-09212-E Section 73 supporting document ([name]) October 2025 [name] and [name] 23rd October 2025 [name] - Ground Floor Plan 3052-CDA-BE-01-DR-A-0640-A Block E - First Floor Plan 3052-CDA-BE-01-DR-A-0641-A Block E – Second Floor Plan 3052-CDA-BE-01-DR-A-0642-A Block E - Third Floor Plan 3052-CDA-BE-01-DR-A-0643-A Block E – Fourth Floor Plan 3052-CDA-BE-01-DR-A-0644-A Block E – Roof Plan 3052-CDA-BE-01-DR-A-0645-A Block E – Elevations – Sheet 01 3052-CDA-BE-ZZ-DR-A-09100-[name] – Elevations – Sheet 02 3052-CDA-BE-ZZ-DR-A-09101-[name] – [name] – Sheet 01 3052-CDA-BE-ZZ-DR-A-09102-[name] – [name] – Sheet 02999 3052-CDA-BE-ZZ-DR-A-09104-D

Notwithstanding the details submitted there shall be no development above slab level until details of: i) Reduced kerb radii at the [site address] junction with [address], ii) A combined bus gate and toucan crossing on [address] to replace the existing bus gate, iii) Widening of the footway to 3.[address] site frontage to facilitate shared pedestrian & cycle use iv) The cycle access inclined path at the north-east end of the site including any barriers with widening to maintain effective width, alignment to tie-in with realigned [address] cycle-footway, ramped access to path across green linking to [site address] , surfacing, speed control measures and revised junction with internal development carriageway, v) Conversion of the footway on the south side of [address] between [site address] and the pedestrian refuge to the west to shared pedestrian & cycle use, have been submitted to and approved in writing by the local planning authority. No more than 30% of the dwellings shall be occupied until the junction has been reconstructed in accordance with the approved details.

Notwithstanding the details shown, no development above slab level shall take place until revised details of the following highways detail has been submitted to and approved in writing by the local planning authority including: i) Junctions to car parks to include ramped entry with footways at 1:40 crossfall; ii) Turning area (and parking) at the southern end of the road to accommodate a 12m long refuse vehicle within a raised shared surface; iii) Ramp locations for raised areas of carriageway; and iv) Surfacing details within the proposed highway. No building shall be occupied until the roads and footways leading that part of the development have been constructed in accordance with the approved plans.

A Parking Management Strategy for the site shall be submitted to and approved in writing by the Local Planning Authority before first occupation of the site. The Parking Management Strategy shall accord with the principles set out in the applicant's [name] unless otherwise agreed in writing by the Local Planning Authority. All of the car parking that is provided at the site shall be provided and managed in accordance with the approved Strategy.

No development shall take place above slab level until details of the surfacing of parking spaces (including widening and lengthening of spaces adjacent to soft landscaping) have been submitted to and approved in writing by the local planning authority. Each approved block shall not be occupied until the car parking spaces for that respective block have been surfaced and provided in accordance with the approved drawing. The spaces shall thereafter be kept available for parking at all times. Surface water from the access must not drain to the public highway.

Notwithstanding the details shown no development shall take place above slab level until a scheme for cycle parking (with access thereto) in accordance with Bedford Borough Council's Parking Standards for [name]: Design and [name] 2014 has been submitted and approved in writing by the Local Planning Authority. The approved scheme shall be implemented for each approved block and made available for use before that respective block which the cycle parking will serve is occupied, and the car and cycle parking areas shall not thereafter be used for any other purpose.

No development shall take place above slab level until details of the proposed arrangements for future management and maintenance of the proposed streets within the development have been submitted to and approved by the local planning authority. The streets shall thereafter be maintained in accordance with the approved management and maintenance details until such time as an agreement has been entered into under Section 38 of the Highways Act 1980 or a private management and maintenance company has been established.

Notwithstanding the provisions of the Town and Country Planning (General Permitted Development) (England) Order 2015 (or any Order revoking, re-enacting or modifying that Order no extensions, outbuildings or rear roof alterations shall be erected or constructed to the townhouses forming [name] on the layout plans hereby approved without the specific grant of planning permission by the Local Planning Authority.

The development shall be constructed in accordance with the approved Construction Management Plan which was submitted to and approved by the Local Planning Authority under application reference 24/00468/AOC issued 23/08/24 to satisfy the requirements of condition 10 of planning approval 19/02247/MAF.

No development shall take place above slab level until full details including samples and manufacturers specification of external materials to be used on that building (to include walls, roof, doors, windows and external gutters and pipework) in the construction of the buildings hereby approved has been submitted to and approved in writing by the Local Planning Authority. The development shall thereafter be carried out in accordance with the approved details or particulars.

Notwithstanding any assessment provided with the planning application, no development shall take place until the remaining contamination information and works have been carried out as required following the partial discharge of part 1 and 2 of the original condition (condition 12 associated with 19/02247/MAF) under 23/01767/AOC, 24/00473/AOC and 25/02309/AOC. The remaining required information is as follows:

Implementation of [name] approved remediation scheme must be carried out in accordance with its terms prior to the commencement of development other than that required to carry out remediation, unless otherwise agreed in writing by the Local Planning Authority. The Local Planning Authority must be given two weeks written notification of commencement of the remediation scheme works. Following completion of measures identified in the approved remediation scheme, a verification report that demonstrates the effectiveness of the remediation carried out must be produced, and is subject to the approval in writing of the Local Planning Authority.

Reporting of [name] the event that contamination is found at any time when carrying out the approved development that was not previously identified it must be reported in writing immediately to the Local Planning Authority. An investigation and risk assessment must be undertaken in accordance with the requirements of condition Part 1 of this condition, and where remediation is necessary a remediation scheme must be prepared in accordance with the requirements of Part 2 of this condition, which is subject to the approval in writing of the Local Planning Authority. Following completion of measures identified in the approved remediation scheme a verification report must be prepared, which is subject to the approval in writing of the Local Planning Authority in accordance with condition Part 3 of this condition.

The units requiring noise mitigation measures, as identified within the approved noise report ([name] project 458MC- Final dated 21/5/2020) originally approved under 19/02247/MAF, shall have those mitigation measures installed prior to the occupation of any of those units. All equipment installed as part of the approved scheme shall thereafter be operated and maintained in accordance with that approval and retained for as long the use continues.

The development shall be carried out in accordance with the details of the proposed water drainage strategy which were submitted to and approved by the Local Planning Authority under application references 24/00541/AOC issued on 03.07.24 to satisfy the requirements of Condition 14 of planning approval 19/02247/MAF.

Prior to any construction above damp proof course, a scheme for on-site foul water drainage works, including connection point and discharge rate, shall be submitted to and approved in writing by the Local Planning Authority. Prior to the occupation of any phase, the foul water drainage works relating to that phase must have been carried out in complete accordance with the approved scheme.

No occupation of any dwelling shall take place until details and specifications of external street lighting and lighting of other public areas (where sought) has been submitted to and approved in writing by the Local Planning Authority. The details shall include the type, quantity, height and location of lighting (including contour plans and technical specifications) and shall avoid potential glare for train drivers on the adjoining railway line.

The development shall be constructed in accordance with the approved levels plans which were submitted to and approved by the Local Planning Authority under application reference 24/00542/AOC issued 10/07/24 to satisfy the requirements of condition 17 of planning approval 19/02247/MAF.

The new dwellings shall achieve and maintain the higher water efficiency standard in the Building Regulations as set out in [name]: Sanitation, hot water safety and water efficiency, 2015 edition, [name] 2015 (or similar replacement standard).

No occupation of any dwelling shall take place a scheme detailing the timescales and location for the provision of a minimum of 35 electric vehicle charging points within the site has been submitted to approved in writing by the Local Planning Authority. The development shall thereafter be implemented in accordance with those details the charging points shall thereafter be retained.

No development shall take place above slab level until a scheme for providing fresh air ventilation to habitable rooms with associated plans showing internal and external ducts and associated service plan has been submitted to and approved in writing by the Local Planning Authority. The scheme shall not compromise the approved noise mitigation provisions outlined in the [name], ref. 458MC- Final dated 21/5/2020 submitted with the application. The approved fresh air mitigation scheme shall be implemented within each block in its entirety before any of the units within the respective block are occupied.

No development above slab level shall take place until a method statement for the erection of integrated bird and bat boxes and the installation of Swift bricks, insect boxes and the creation and enhancement of the retained and new habitats; has been submitted to and approved in writing by the Local Planning Authority. The content of the method statement shall include, as a minimum, the: a) purpose and objectives for the proposed works; b) detailed design(s) and / or working method(s) necessary to achieve stated objectives (including, where relevant, type and source of materials to be used); c) extent and location of proposed works shown on appropriate scale maps and plans; d) timetable for implementation, demonstrating that works are aligned with the proposed phasing of construction; e) persons responsible for implementing the works; f) initial aftercare; and, g) disposal of any wastes arising from the works. The works shall be carried out strictly in accordance with the approved details [e.g. first planting season after the approval of the method statement] and shall be retained in that manner thereafter.

The development shall be carried out in accordance with the details of the proposed ecological mitigation and enhancement strategy which were submitted to and approved by the Local Planning Authority under application references 23/02312/AOC issued on 16.01.24 to satisfy the requirements of Condition 23 of planning approval 19/02247/MAF.

Notwithstanding the details submitted with the application, no development shall take place (other than the construction of essential road and drainage infrastructure including SuDS such as swales) until full details of all open space for the development to include boundary treatments, litter and dog bins, pathway surfacing materials, specification of benches, a timetable for installation and a management plan to maintain the open space has been submitted to and approved in writing by the Local Planning Authority. The development shall thereafter be implemented in accordance with the approved details or particulars.

No development shall take place above slab level until a scheme demonstrating the provision of a minimum of 10% of the new dwellings meet Category 2 (Accessible and Adaptable dwellings) of approved [name]; Volume 1 and 5% of all market housing and 7% of affordable housing will meet Category 3 requirements (or such replacement document or policy which exists at the time of the development commencing). The submitted details shall specifically indicate which dwellings are to be built to these standards and the relevant dwellings shall be built and retained in accordance with the approved.