The council had approved an application to demolish a pub, garage and shop and build a convenience store, retail units and homes. The approved plans showed six houses, two flats, a convenience store, three retail units and a garage and workshop. A revised scheme submitted under section 73 of the Town and Country Planning Act 1990 sought to amend the approved plans to show seven dwellinghouses, a convenience store and three retail units.
The inspector referred to Planning Practice Guidance stating that where changes to an existing permission are fundamental or substantial, a new planning application should be made under section 70 of the act. She also cited case law, in particular Vue Entertainment Ltd v City of York Council , in confirming that section 73 cannot be used to pursue a fundamental variation to the overall effect of the original permission.
In her opinion, the revised proposals would result in a very different scale and design, with the layout altered and the number of parking space reduced. Omission of the garage and workshop building had policy implications, she added. In her view, these substantial changes made the scheme fundamentally different from the development originally permitted, and an application for full permission under section 70 would need to be made.
As the original description of development referred to the erection of flats and the amended scheme referred only to dwellinghouses, the inspector pointed out that even if she had dealt with the proposal under section 73 the appeal would still have failed, because it was not within her power to alter that description.
Inspector: Zoe Raygen; Written representations