Appeal 6005543

The appeal is dismissed.

Condition 8 in the banner heading above refers to “[address]” but this reference should be to “[address]” and I have dealt with the appeal on this basis.

Planning permission was granted on appeal in 20191 for a dwelling on a site fronting [address]. The house is now largely complete and a certificate of lawfulness confirming that the development had lawfully commenced within three years of the date of the original permission was granted in 20232.

The approved scheme included conditions 2 and 8 as set out in the banner heading above. The red line site boundary shown on approved plans 0460/S/02 1 Appeal Ref APP/P3610/W/19/3222948 and application ref 17/01274/FUL “the original permission/approved scheme” 2 Application ref 23/00444/COND and 0460/P/01 indicate that the site comprises land between [address] and the rear of properties at 344 and [address] (Nos 344 and 346).

Plan 0460/P/01 shows a new dropped kerb to provide a new access entrance from [address] and an area of block paving for parking in front of the proposed house. However, this is dependent on gaining access over a currently landscaped strip of land between the site and the carriageway at [address] which is outside the red line boundary. [name] 2025, the owners of this land confirmed that they did not wish to sell it to the appellants, so the access shown on approved plan 0460/P/01 cannot currently be implemented.

Plan 0460/S/02 shows blue lines around the properties at Nos 344 and 346 and include a driveway beside No 344 which provided access from [address] to the garages previously located on the site.

The appellants seek to vary condition 2 by replacing the reference to plan 0460/P/01 with reference to plan 0460/P/01 [name] which shows the same red line site boundary. It would change the proposed access and parking arrangements, indicating a new entrance accessed off [address] via the existing established driveway and a car turntable in the southernmost part of the site. Access to the site would be reliant on land within the blue line areas. It would remove the requirement for the visibility splays onto [address] under condition 8.

Article 7 of the Town and Country Planning (Development Management Procedure) (England) Order 2015 requires an application for planning permission to be accompanied by a plan which identifies the land to which the application relates.

The Planning Practice Guidance3 states that the application site should be edged clearly with a red line on the location plan and it should include all land necessary to carry out the proposed development (e.g. land required for access to the site from a public highway, visibility splays, landscaping, car parking and open areas around buildings). It indicates that a blue line should be drawn around any other land owned by the applicant, close to or adjoining the application site.

The effect of the proposed variation to condition 2 would be to allow access to the new dwelling on land outside the red line site boundary for which the original permission was granted. Whilst one of the appellants appears to own this access, as it is outside the site boundary for the approved scheme, the proposed variation to condition 2 does not fall within the scope of section 73 of the Act4. As such, there is no need for me to consider the consequent implications for condition 8.

There is reference to various cases relating to the scope of section 73 considered by the Courts. However, the full judgments have not been provided and there is no substantive evidence that the courts have accepted the principle that section 73 of the Act can be used in relation to land outside the red line site boundary.

I acknowledge that the Council could have invalidated the application prior to issuing a decision notice, but this does not alter my findings on the appeal. 3 Paragraph: 024 [name]: 14-024-20140306 4 Town and Country Planning Act 1990 (as amended)

Consequently, I conclude that the proposal would require a change to the red line boundary. As such it falls outside the scope of section 73 of the Act5, and therefore a new planning application is required. Given my findings, it is not necessary for me to consider the merits of any other issues raised in this case.

For the reasons given above, I conclude that the appeal should be dismissed.