Appealing a section 73 refusal and the original condition
Section 73 refusals take nothing away: the original permission survives. This sets out the scope of section 73 after Finney, the appeal route, and the levy and obligation traps.
A refused section 73 application costs you time, not your permission. That is the first thing to hold on to. An application under section 73 of the Town and Country Planning Act 1990 asks for permission to develop without complying with a condition previously imposed, and a refusal leaves the original permission sitting there, unaffected and still capable of being implemented. So the decision after a section 73 refusal is not whether to salvage something. It is whether the variation is worth an appeal, a fresh application, or abandoning in favour of building what you already have consent for.
What section 73 can and cannot change
Section 73 lets the authority consider only the question of the conditions subject to which permission should be granted. It is not a route to reconsider the principle of development, and it is not a route to change what was permitted.
That boundary was settled by the Court of Appeal in Finney v Welsh Ministers, which held that a section 73 permission cannot vary a condition in a way that conflicts with the description of the development in the operative part of the permission. If the permission is for a single storey rear extension and you want two storeys, no amount of condition drafting gets you there under section 73.
Two other limits catch people out. Section 73(5) prevents the use of section 73 to change the time limit within which development must be started, so a lapsed or nearly lapsed permission cannot be revived this way. And where the condition you want removed was the reason the permission was acceptable at all, the authority is entitled to conclude that without it permission should not be granted.
The scale of change matters more than the label on the application form. A minor material amendment is a practice term rather than a statutory one, and the dividing line between what section 73 can carry and what needs a fresh application is a judgement the authority makes first and an inspector reviews second.
Why a refusal leaves the original permission intact
A grant under section 73 creates a new, freestanding planning permission. The original permission is not superseded, varied or extinguished. It runs alongside, and either may be implemented, subject to the usual rules about physically inconsistent schemes.
The corollary is that a refusal takes nothing away. Your original permission keeps its own conditions, its own time limit and its own planning obligation. If the refusal notice reads as though the authority has reconsidered the whole scheme, check the reasoning carefully, because a refusal founded on objections to the principle of the development rather than to the condition is vulnerable.
This is also why the commercial calculation differs from an ordinary refusal. With a refused full application you have nothing. With a refused section 73 application you have a consented scheme and a question about whether the variation is worth chasing.
Appealing the refusal against reapplying
Both routes are open. Choose on the strength of the reason for refusal and on programme.
An appeal under section 78 goes to the Planning Inspectorate, normally by written representations for a case of this kind, and it must be submitted within six months of the date on the decision notice. The inspector considers only the condition question, which makes the scope narrow and the evidence focused. Where the refusal turns on a point of interpretation, an appeal is usually the better route because you want a determination rather than another negotiation.
A fresh application makes more sense where the refusal identified a curable problem. If the officer said the varied condition would leave a drainage detail unresolved, resolve it and reapply. Authorities normally allow one further application on the same site without a fee within twelve months of a refusal, which makes the reapplication route inexpensive in fee terms though not in time.
| Route | Best when | Timing |
|---|---|---|
| Section 78 appeal | The refusal rests on interpretation or a policy judgement you can challenge | Six months from the decision notice |
| Fresh section 73 application | The reason for refusal is a curable evidence gap | Determination period restarts |
| Full application | The change goes beyond what section 73 can carry | Full determination period and fee |
| Section 96A amendment | The change is non-material in substance | 28 days, no appeal right |
The one route with no fallback is section 96A. There is no right of appeal against refusal of a non-material amendment, so if the authority says the change is material you are back to section 73 or a full application.
Where the change is too great for section 73
Look at the operative description of development first, then at the approved drawings. If the variation requires the description to be rewritten, section 73 is the wrong vehicle and an appeal on that point will fail regardless of the planning merits.
Common examples that exceed section 73 include increasing the number of units beyond what the description states, changing the use, and extending the red line of the application site. Changing the approved drawings by substituting a revised layout can work if the description is broad enough, and cannot if the description fixes the scheme.
Section 73B, introduced by the Levelling-up and Regeneration Act 2023, was designed to provide a more flexible route for varying permissions where the effect is not substantially different. Bringing the new provisions into force has been staged, so verify the current position on gov.uk before relying on it. As at the date of writing, most variation applications are still handled under section 73.
Conditions reimposed on a new permission
When an authority grants under section 73 it reimposes the conditions from the original permission, other than the one being varied, on the new permission. That is the intention. What sometimes happens instead is that the conditions come back updated, renumbered, or with new requirements to be met before work starts.
Read the draft conditions before the decision is issued and compare them line by line with the original set. Points worth checking are whether a condition already discharged on the original permission has been reimposed in its original form, whether compliance triggers have moved earlier, and whether a condition that reflected a since superseded standard has been carried across unchanged.
Where a discharged condition reappears, the practical answer is usually a short letter setting out the earlier discharge reference and asking for the condition to be worded to reflect it. Our note on reading a refusal notice and turning it into a plan covers how to read decision wording forensically before responding.
Levy and obligation consequences
This is where section 73 catches developers who have handled the planning issues well.
A section 73 permission is a new permission, so the Community Infrastructure Levy position is recalculated against it. Where floorspace has changed, the chargeable amount changes. Where an exemption or relief was claimed on the original permission, it does not automatically follow, and it usually has to be claimed again before the new permission is implemented. Miss that and the exemption is lost.
A section 106 agreement tied to the original permission does not automatically bind a section 73 permission either, unless the agreement was drafted to cover subsequent permissions. Where it was not, a deed of variation or a supplemental agreement is needed. Authorities generally require this to be in place before the section 73 permission is issued, which adds legal time to the programme. Raise it at validation, not at the end.
Preparing the appeal case
Keep the appeal statement tightly scoped. The inspector is determining whether the condition should be varied or removed, so material about the acceptability of the development in principle is at best irrelevant and at worst invites the inspector to look at matters you would rather leave alone.
A workable structure is:
- The original permission, its description of development and the condition in question, quoted.
- Why the condition fails one of the six tests in the planning practice guidance on conditions, where that is your case: necessary, relevant to planning, relevant to the development, enforceable, precise and reasonable in all other respects.
- The planning effect of the variation, with the evidence that addresses the reason for refusal.
- Alternative wording you would accept, because inspectors frequently vary rather than delete.
- Confirmation that the original permission remains extant, with its reference.
Offering alternative wording is the step most often skipped. An inspector who agrees that the condition as drafted is unreasonable, but has no acceptable alternative in front of them, may simply dismiss the appeal.
Where the variation is supported by new technical evidence, put that evidence in as an appendix rather than summarising it, and make sure the Planning Statement and any supporting reports describe the same scheme, the same floorspace and the same phasing. Inconsistency between documents is the easiest thing for an inspector to notice, and our note on withdrawing an application before refusal sets out when it is better to pull an application than to collect a refusal you will have to explain later.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it.
PlanScope can draft the supporting statement for a section 73 application or an appeal, structured to UK planning policy and flagging the facts that need confirming from the original decision notice. For specialist technical reports, qualified professional input may be required.
PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
Does a section 73 refusal cancel my original planning permission?
No. A section 73 application asks for permission to develop without complying with a condition previously imposed, and a grant creates a new freestanding permission alongside the original. A refusal leaves the original permission extant with its own conditions, time limit and obligation, so you can still implement the scheme as first approved.
How long do I have to appeal a section 73 refusal?
An appeal under section 78 must normally be submitted to the Planning Inspectorate within six months of the date on the decision notice. Householder appeals run to a shorter twelve week deadline. Written representations are the usual procedure for a condition appeal because the issues are narrow, which keeps the timetable and the evidence manageable.
Can section 73 be used to change the description of development?
No. The Court of Appeal in Finney v Welsh Ministers held that a section 73 permission cannot vary a condition in a way that conflicts with the operative description of the development. If your change requires the description to be rewritten, for example adding units or a storey, you need a fresh full application rather than a variation.
Does my section 106 agreement carry over to a section 73 permission?
Not automatically. Because a section 73 grant is a new permission, an agreement tied only to the original permission may not bind it unless it was drafted to cover subsequent permissions. A deed of variation or supplemental agreement is usually required, and authorities often want it completed before issuing the decision, so raise it early.
Is the Community Infrastructure Levy recalculated after a section 73 grant?
Yes. The new permission is assessed in its own right, so a change in floorspace changes the chargeable amount. Any exemption or relief claimed against the original permission does not carry across by default and normally has to be claimed again before the new permission is implemented. Check the current guidance before starting work.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.