Two Bovingdon section 73 appeals have been ruled invalid after a Planning Inspector concluded that proposed changes at Greymantle, Hempstead Road, could not lawfully be secured by varying the conditions of the original permissions. The case involves a property subsequently converted into two homes and proposed detached garages for cycle storage.
Inspector N Bowden issued the combined decision on 16th October 2026, following a site visit on 20th August. Appeal 6011032 concerned the original single-house extension permission; appeal 6011849 related to a later two-dwelling conversion. The Inspector declined to determine either appeal and proposed no further action. He did not decide the underlying planning merits.
For anyone trying to amend a permission, the two section 73 appeals illustrate an important dividing line between changing conditions and changing what a permission actually authorises. Separate applications seeking full costs against Dacorum Borough Council were also declined, not after a detailed reasonableness assessment but because the Inspector found that there were no valid appeals in which costs could be awarded.
Why the section 73 appeals could not be determined
Section 73 of the Town and Country Planning Act 1990 permits an application to carry out development without complying with conditions attached to an existing planning permission. The permission granted under section 73 must remain consistent with the operative description of the original consent.
The original four-page Greymantle appeal decision concerns two applications made by Ben Sterling of Jumbly Investments Ltd against Dacorum Borough Council. The council references were 26/00720/ROC for appeal A and 26/00723/ROC for appeal B.
The proposed variations involved drawings and cycle storage, but the Inspector found that the relevant changes went beyond what the original permissions described. He therefore considered the section 73 appeals invalid rather than proceeding to judge whether their design, amenity or parking effects were acceptable.
That point requires care. The legal rule is not that every substantial amendment falls outside section 73. It is that revised conditions cannot contradict or effectively rewrite the development granted by the operative part of a planning permission.
Appeal A: one dwelling had become two
Appeal A sought to vary condition 3, the approved-plans condition, on permission 22/00882/FHA, dated 15th February 2023. That consent authorised demolition of a garage, a side extension and a loft conversion to a single dwelling.
In the intervening period a different permission had authorised conversion to two semi-detached dwellings. The Inspector reported that this later scheme had been implemented and much of the construction was substantially complete by his visit.
Although the designs shared broad similarities, the original 2023 application had been considered as alterations to one house. The later implemented development created two homes, a net increase of one dwelling, and carried different planning implications.
The Inspector characterised the actual scheme as ‘fundamentally different to a domestic extension’. His concern was that attempting to use the old plans condition would conflict with the operative description of the earlier permission, not merely that two dwellings were a larger alteration than an extension.
The parties disputed whether the older permission had been implemented at all and whether it remained extant. Inspector Bowden expressly did not resolve that issue, treating it as unnecessary once he had found that the section 73 appeals could not progress on the proposed basis.
Appeal B: garages hidden inside a cycle-storage condition
The second appeal concerned permission 23/02934/FUL, granted on 1st August 2025 for demolition, replacement extensions and conversion from one dwelling into two. It sought to vary condition 2 governing approved plans and condition 5 governing cycle-storage details.
Condition 5 required cycle storage to be approved in writing before occupation, installed before first occupation and retained. The applicant proposed to provide those spaces within two detached garages to the rear of the new properties.
Neither garage had been built or expressly permitted. The Inspector also could not establish that they would enjoy deemed planning permission under permitted development rights, a question on which the parties disagreed.
In substance, an amendment to a cycle-storage condition was being used to introduce buildings outside the description of the original consent. The Inspector found that he could not grant permission for them by changing condition 5, because that would exceed the operative permission.
He acknowledged that varying a cycle-parking condition would not necessarily be impermissible in principle. However, this proposal relied on two unapproved detached garages. That made appeal B invalid as submitted, and the Inspector did not rule on whether the garages might gain their own separate permission.
For other developers, these section 73 appeals demonstrate why apparently modest revisions to plans or discharge arrangements may require a fresh consideration of the permission’s actual scope, particularly where an additional building is involved.
What Finney and Test Valley mean for section 73
The decision expressly relies on established case law. In Finney v Welsh Ministers & Ors [2019] EWCA Civ 1868, the Court of Appeal held that section 73 could not be used to change the operative description of a permission merely by varying conditions.
In Test Valley Borough Council v Chala Fiske [2024] EWCA Civ 1541, the Court of Appeal confirmed that a condition cannot negate or contradict what is expressly granted by the operative permission. The court also rejected a separate jurisdictional rule confining section 73 to only minor or non-fundamental amendments.
That latter point, also considered in Armstrong v Secretary of State [2023] EWHC 176 (Admin), is essential to understanding the Bovingdon section 73 appeals properly. The Inspector’s description of the development on the ground as fundamentally different explains the factual conflict with the original operative grant. It should not be reported as the invention of a new substantial-change test.
The distinction is commercially important. Applicants can waste time and fees advancing a section 73 proposal that cannot lawfully be determined in its submitted form. Identifying the controlling description and the proposed condition changes before applying may avoid that mistake.
Why both costs claims failed
The appellant submitted applications for a full award of costs against Dacorum Borough Council in both matters. The Inspector issued a separate one-page costs decision, also dated 16th October 2026.
That decision is unusually short because it depends entirely on the procedural outcome. Inspector Bowden said there were no valid appeals in which a costs claim could be made. Both applications were therefore declined.
These were not substantive findings that the council’s behaviour was reasonable, nor were costs awarded to Dacorum. The Inspector did not proceed to decide allegations of unreasonable conduct. The costs applications simply had no valid appeal proceedings on which to rest.
That is why the section 73 appeals and costs decision need to be read together. A report that simply said the applicant had two refusals and lost its costs claims would overlook both the lack of a planning-merits determination and the actual reason for the costs outcome.
The practical lesson for homeowners and developers
Before submitting a variation, I would read the operative description of the original consent alongside the approved-plans condition and any later permissions. Then establish precisely what is built, what is lawfully authorised and which changes can genuinely be achieved through conditions.
Where a proposed condition effectively adds a building, introduces an additional dwelling or otherwise conflicts with the operative grant, the safest route may involve a different planning application. Whether that route is available or likely to succeed is a separate factual and legal assessment.
Planning Geek’s guide to section 73 amendments and the existing Finney and Test Valley case-law summaries provide useful background.
The Bovingdon section 73 appeals do not establish that the proposed works or garages could never be permitted. They establish that appeals 6011032 and 6011849 were invalid as brought. Inspector Bowden declined to determine them, and the associated costs claims were declined too.
0 Comments