Planning Consultancy:
Variation of Planning Conditions
En-Plan are able to advise you on Section 73 applications which are an appropriate mechanism for securing ‘minor material’ amendments to an approved planning application – they are essentially small scale changes. It works by altering a condition attached to the original planning permission, to reference any ‘changed’ plans. So there must be a list of approved plans and documents attached to your original decision in the first instance in order for it to be altered. If there isn’t, then you can use a Section 96a application process (read on) to first attach this, and then use the Section 73 process to amend it (sounds more complicated than it actually is).
There is no formal definition of a ‘minor material’ amendment, it’s very much at the discretion of the relevant LPA and as such can vary between them. However, it generally includes any changes that are not substantially different to the original planning permission, so an LPA would be looking at significant differences in scale, site coverage, building heights, site levels, changes in use, changes in appearance and any new environmental, aesthetic or amenity impacts.
Any amendments would also be considered against Local Plan policy and against any restrictive conditions on the original permission. They would also be scrutinised if they reverse any design improvements secured in the first scheme, or involve any tweaks to the application site (red line) boundary.
Once granted, a Section 73 consent sits alongside the original permission which remains intact. So, you can implement either scheme (not both) but need to inform the LPA which one you will be pursuing. The new decision notice should replicate the relevant conditions from the original (unless these have been discharged), and some conditions will be reworded to reflect the newly approved plans. There is also the possibility that the LPA may choose to add further conditions as they see fit. So make sure you request a draft of these before the new decision notice is issued.
You should also be aware that the Environmental Impact Assessment (EIA) Regulations apply to a Section 73 application, as this is considered to be a new application for planning permission under the 2011 EIA Regulations. Where the development is listed under either Schedule 1 or Schedule 2 and satisfies the criteria or thresholds, you should request the LPA to carry out a new Screening Request and/or Scoping Opinion to determine if an EIA is necessary. If the original permission was EIA development then the LPA will need to consider if you should supplement the original Environmental Statement (ES) to satisfy the requirements of the Regulations. Whether changes are required or not, an ES must be submitted with a Section 73 application if the LPA considers it to be EIA development.
You will also need to be conscious of timescale, as the Section 73 process replicates that of the original application. So, if this was a major or an EIA scheme, then the Section 73 submission would take 13 or 16 weeks respectively. Moreover, if there was a Unilateral Undertaking or a Section 106 Agreement attached to the original permission then you are obliged to provide a Deed of Variation to attach this to the new permission. Finally, the Section 73 route is only available to planning, and not listed building consents, which are dealt with below.
Case Study: Variation of condition 2 attached to planning permission 22/01903/FUL dated 21 April 2022 | United House Tern Hill Market Drayton Shropshire TF9 3PX - Application Reference 22/05496/VAR.
This application seeks to vary the height and external appearance of a commercial storage building approved in June 2022 in association with Hands on Care Homecare Services Limited who provide high quality social care and personal care to keep people safe, comfortable and living independently within their own home. be constructed from profiled metal sheeting walls and roof with security door.
The proposed site is located 250 metres to the south west of Ternhill roundabout the junction between the A53 and A41. The site consists of a brick and tile linear building along the south western boundary and a ‘T’ shaped configuration of timber clad buildings along the north eastern boundary. A yard and parking area is provided towards the roadside frontage and rear of the site. The site and surrounding commercial premises previously formed part of the railway line and sidings between Market Drayton and Hodnet. The land which surrounds the site to the north west and south west is operated by Tony Hanmer & Son Ltd who supplies sand, gravel and aggregates, whilst the two storey building to the north east is operated by Ternhill Furniture which deal with new and used furniture sales.
The site is operated by Hands on Care Homecare Services Limited who provide high quality social care and personal care to keep people safe, comfortable and living independently within their own home. The family business was founded 10 years ago and provides short term support or long term care plans to create a bespoke personal care plan. Services are currently provided throughout North Shropshire. The main administrative office base is at United House, Tern Hill which is open 9:00am to 5:00pm Monday to Friday.
The approved storage building measured 12 metres wide by 9.94 metres deep with an eaves height of 4 metres and ridge height of 5.7 metres. The building was to be constructed from brick with a profiled metal sheeting roof with security door. This revised application proposes the storage building to have an identical footprint and eaves height, although the ridge line will be raised by 800mm up to 6.5 metres. The brick walls will be replaced with profiled metal sheeting to match the roof whilst two roller shutter doors and a pedestrian door will be provided on the front elevation, together with an additional pedestrian door on the side elevation.
The proposed increase in the height of the ridge line and external alterations to the walls and openings will not significantly alter the layout, scale or appearance which will respect the existing commercial buildings on site and surrounding commercial uses and will not result in any visual impact in the locality. The proposed buildings will be built from materials which are characteristic and similar in appearance to the adjacent buildings. The proposed layout, design and scale of the building would be acceptable and would not cause any detrimental impact on the character of this commercial site.
It was considered that the proposal is appropriate in terms of its design, scale and form and will not have a detrimental impact upon the sounding area or on surrounding amenity issues.
Case Study: 21/04881/APP | Variation of condition 2 (plans) relating to 21/01560/APP (Two storey rear, part two storey side and single storey front and side extensions and garage conversion and alterations to roof to allow for loft conversion and addition of side facing dormer) | 9 Buttermere Aylesbury Buckinghamshire HP21 7PN
Introduction
The application site comprises a two storey detached dwelling located on the far western end of Buttermere facing north. To the east is No. 7 and to the west are the rear gardens of 1, 3, 5 and 7 Smith Close. Over the rear boundary is 37 Allonby Way. Buttermere is a small cul de sac of 5 dwellings all facing north towards the highway. Beyond the highway is a narrow grassed area with the A41 Tring Road further beyond.
Proposed Scheme
The application is made under S73 of the Town and Country Planning Act 1990 (as amended) to
vary condition 2 of planning permission 21/01560/APP which was approved by the local planning
authority on 24th June 2021. The original application was described as ‘Two storey rear, part two storey side and single storey front and side extensions and garage conversion and alterations to roof to allow for loft conversion and addition of side facing dormer (amendment to 20/03247/APP)’ and this application seeks to
vary condition 2 (approved plans) of the decision notice.
Condition 2 states: The development hereby permitted shall be carried out in accordance with the details contained in the planning application hereby approved and plan numbers: Location Plan [Unnumbered], Proposed Floor Plans [03 Rev E], Approved Elevations [A 01], Approved Elevations [A 02], Floor Plans: Approved [A 03], Approved Roof Plan [A 04], Proposed Elevations [A 05], Proposed Roof & Floor Plan [A 06] & Proposed: 3D Views [A 07] received by the local planning authority on 13th April 2021 & Existing Floor Plans [01] & Existing Elevations [02] received on 30th April 2021 and in accordance with any other conditions imposed by this planning permission.
Reason: To ensure a satisfactory appearance to the development and to comply with policy GP35 of the Aylesbury Vale District Local Plan and the National Planning Policy Framework. The application seeks the following amendment: It is proposed to introduce a first floor flank window in the western elevation and the enlargement of smaller window in the rear elevation following internal alterations to the approved layout.
Evaluation
a) The policy position and the approach to be taken in the determination of the application. The Aylesbury Vale District Local Plan (AVDLP 2004) has been superseded and is replaced by the Vale of Aylesbury Local Plan which was adopted on 15th September 2021 and is given full weight. Of particular importance in the determination of this application is Policy BE3 on amenity.
b) Whether the proposal would constitute a sustainable form of development: The Government's view of what "sustainable development" means in practice is to be found in paragraphs 7 to 211 of the NPPF. Paragraph 12 states that the presumption in favour of sustainable development does not change the statutory status of the development plan as the starting point for decision making.
Principle of Development
In order to introduce greater flexibility, the General Development Procedure Order has been modified to allow applications for 'minor material changes' to be made to modify a development after planning permission has been granted. The flexibility was achieved by making changes to Section 73 of 1990 Act, which allows changes to conditions applying to existing permission, effectively varying the permission.
There is not a statutory definition for a 'minor material amendment', however government guidance advises that: 'A minor material amendment is one whose scale and nature results in a development which is not substantially different from the one which has been approved.' In determining the application the guidance advises that by definition the development will have been judged acceptable in principle at an earlier date. The application should be determined in accordance with the development plan and other material considerations but Local Planning Authorities should focus their attention on national and local policies or other considerations which may have changed significantly since the original grant of permission, as well as the changes sought.
The principle of the development has been agreed as part of planning application 21/01560/APP with this application seeking to install a window at first floor level in the west flank elevation, and the enlargement of smaller bathroom window in the rear elevation following internal alterations to the approved layout.
Impact on appearance and character of the dwellinghouse, street scene and wider area
Policy BE2 of the adopted Vale of Aylesbury Local Plan states that all new development proposals
shall respect and complement the following criteria:
a) The physical characteristics of the site and its surroundings including the scale and context
of the site and its setting
b) The local distinctiveness and vernacular character of the locality, in terms of ordering, form,
proportions, architectural detailing and materials.
c) The natural qualities and features of the area, and
d) The effect on important public views and skylines.
The NPPF sets out guiding principles including that authorities should always seek to secure high
quality design.
Apart from a window in the west flank elevation and the replacement larger window in the rear elevation which reflect the appearance of the existing windows, the proposals would not alter the size and design of the approved extensions and therefore would not detract from the appearance of the host dwelling and visual amenities of the street scene. A representation suggests an increase in the height of the dwelling, however following a site visit and the accompanying plans, suggest there is no difference in the height of the property.
It is acknowledged additional rooflights have been inserted in the single storey front and side extension however these constitute permitted development and do not require planning permission.
In summary the overall proposal is considered to be of a scale and design that respects the character and appearance of the existing dwelling and does not overwhelm it. In addition is considered that the proposal would not appear overly prominent within the streetscene or the locality in general. The proposals are therefore considered to comply with policy BE2 of the adopted Vale of Aylesbury Local Plan, the Council’s Design Guide Residential Extensions and the NPPF in this regard.
Impact on residential amenity
Policy BE3 of the adopted Vale of Aylesbury Local Plan also states that new development proposals should achieve a satisfactory level of amenity for future residents. Where planning permission is granted, the council will use conditions or planning obligations to ensure that any potential adverse impacts on neighbours are eliminated or appropriately controlled.
An assessment on the impact of the neighbouring properties was carried out under the previous application 21/01560/APP where it was considered that the proposal would not adversely impact the amenities of these properties by way of loss of light, overshadowing, over- dominance, and loss of privacy and overlooking, subject to planning conditions. Given there is no change to the scale of the approved extensions there would be no greater impact in terms of loss of light, overshadowing and over-dominance. The current application seeks to insert in a window at first floor level in the west flank elevation of the dwellinghouse. Condition 5 of planning permission ref: 21/01560/APP states ‘No windows other than those shown on the approved drawing No. A 01, A 02, A 03, A 04, A 05, A 06 & A 07 received by the Local Planning Authority on 13th April 2021 shall be inserted in the east and west flank elevation of the development hereby permitted without the prior express permission in writing of the Local Planning Authority.’ The reason was to preserve the amenities of the occupants of the adjacent dwelling.
It is acknowledged the gaps for the windows have been pre-empted, however the current application has been submitted in order to regularise the situation. The window proposed in the first floor west flank elevation would serve an en-suite following alterations to the approved layout and is illustrated on the accompanying plans to be obscure glazed and only top opening. This would also be secured via condition. As such it would not overlook the neighbouring gardens and properties, similar to the approved first floor openings in the eastern elevation of the dwellinghouse and would continue to preserve the amenities of these properties. The enlarged window at first floor level in the rear elevation would face the applicants private rear garden. There would be oblique views of the neighbouring gardens nevertheless there are existing openings at first floor level in the rear elevation of this property and it is not considered these cause any additional level
of overlooking over and above the original situation.
The rooflights in the single storey front and side extension constitute permitted development and do not require planning permission. In addition no conditions were imposed on any previous permissions restricting the insertion of further rooflights.
In summary, given the position of the windows and orientation it is considered that the proposal would not have an unacceptable adverse impact upon the neighbouring amenity. Therefore the proposal accords with policy BE3 of the Vale of Aylesbury Local Plan and NPPF 2021.
Impact on highways and parking
Policy T6 of the adopted Vale of Aylesbury Local Plan states that all development must provide an appropriate level of car parking, in accordance with the standards set out in within Appendix B – Parking Standards. The current application does not introduce any additional bedrooms to the application site to those already approved and would not affect the car parking layout and parking provision. Therefore the proposal is considered to accord with policy T6 of the adopted Vale of Aylesbury Local Plan and NPPF in termsm of its impact on highways and access.
Weighing and Balancing of Issues/ Overall Assessment
This section brings together the assessment that has so far been set out in order to weigh and balance relevant planning considerations in order to reach a conclusion on the application. In determining the planning application, section 38(6) of the Planning and Compulsory Purchase Act 2004 requires that proposals be determined in accordance with the development plan unless material considerations indicate otherwise. In addition, Section 143 of the localism Act amends Section 70 of the Town and Country Planning Act relating to the determination of planning applications and states that in dealing with planning applications, the authority shall have regard to:
a. Provision of the development plan insofar as they are material,
b. Any local finance considerations, so far as they are material to the application (such as Cil if applicable), and,
c. Any other material considerations
Paragraph 11 of the NPPF sets out the presumption in favour of sustainable development which for decision taking means approving development proposals that accord with an up-to-date development plan without delay; or where there are no relevant development plan policies, or the policies which are most important for determining the application are out-of-date, granting permission unless the application of policies in the NPPF that protect areas or assets of particular importance provides a clear reason for refusing the development proposed; or any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in the Framework taken as a whole.
The most relevant policies in the local plan for this application are considered to be up-to-date and the Council is able to demonstrate a 5 year housing land supply and so paragraph 11d of the Framework is not therefore engaged. The principle of the development was established by 21/01560/APP and only those matters that
are affected by the changes to the conditions have been assessed. It has been concluded that the proposal would not be substantially different from that originally granted planning permission and the revisions now proposed, namely the insertion of a window at first floor in the western flank elevation and the enlargement of a smaller window in the rear elevation following internal alterations to the approved layout would be acceptable in terms of residential amenity. The scheme has also been considered acceptable in terms of its impact on the character and appearance of the host dwelling and area, and highways and parking. However these do not represent benefits of the scheme but rather demonstrate an absence of harm to which weight
should be attributed neutrally. In the terms of applying paragraph 11(c) of the Framework it is concluded that the proposal accords with an up-to-date development plan and therefore it should be approved without delay.
Further to the Variation of Conditon application we have produced the Technicla Building Drawinsg that have allowed the applicants to progress the project to the Building Regulations stage.
How En-Plan can assist you in altering an existing planning permission
At En-Plan we can provide the relevant drawings and expertise to enable the above and we can also help you with any "non-material amendments" or the discharge of planning conditions as you implement your planning permission.
Please CONTACT US for a free no obligation consultation or email me on simon@en-plan.co.uk. I look forward to talking through any planning conditions you may need our assistance with.
