Appealing against a planning condition on its own

You can appeal against a condition on a planning permission without appealing the permission itself, under section 78 of the Town and Country Planning Act 1990. The catch is the one most architects are never warned about: on that appeal the inspector redetermines the application, and section 79 allows the decision to be reversed or varied whether or not the appeal relates to that part. So an appeal aimed at one condition can end with the permission refused. That risk is why most condition disputes are run as a section 73 application instead.

Both routes work. They have different consequences for the permission you already hold, and choosing between them is the actual decision.

The right to appeal a condition

Section 78 gives a right of appeal against a decision to grant permission subject to conditions. The appeal is made to the Secretary of State and dealt with by the Planning Inspectorate, normally by written representations for a case of this kind.

The grounds are substantive rather than procedural. You are arguing that the condition should not have been imposed, or should be worded differently, measured against the six tests in the Planning Practice Guidance on the use of planning conditions: necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects.

One point to check first. Where a condition is one that must be satisfied before work starts, section 100ZA of the 1990 Act requires the applicant's written agreement before the authority imposes it, subject to the prescribed procedure. If that agreement was never sought, you have an argument about the condition that does not depend on the six tests at all.

Risk that the whole permission is reconsidered

The inspector is not confined to the condition. The appeal puts the application back before a decision maker who deals with it as if it had been made in the first instance, and the powers in section 79 are wide.

In practice inspectors do not go looking for reasons to refuse a permission the authority granted. But the risk is real where the permission is finely balanced, where the development plan has changed since the grant, where a new constraint has arrived such as mandatory biodiversity net gain, or where a consultee has changed position.

Three situations where the risk is high enough to rule out an appeal:

• The permission was granted against an officer recommendation for refusal
• The development plan or national policy has moved since the decision
• The condition under challenge is the thing that made the scheme acceptable

That last one is the trap. Appealing the condition that resolved the harm invites the inspector to conclude that without it the development is unacceptable.

Section 73 as the alternative route

A section 73 application asks for permission to develop without complying with a condition previously imposed. The authority can grant permission subject to different conditions, or refuse, and a refusal carries its own right of appeal.

The important feature is that a section 73 grant is a new permission. The original permission remains in existence, so a refusal leaves you where you started rather than with nothing.

Two consequences of a section 73 grant catch people out. The new permission does not automatically carry the planning obligations attached to the original, so a deed of variation or a new agreement may be needed, and varying a section 106 agreement after permission covers how that works. And a section 73 permission is a new chargeable development for levy purposes, which needs checking before it is submitted rather than afterwards.

Section 73 also cannot be used to extend the time limit for implementation. That restriction is express.

Deadlines and which clock applies

Get this right because the deadline is jurisdictional. A section 78 appeal against conditions must be made within six months of the date of the decision notice, reduced to twelve weeks for householder and minor commercial appeals.

The six months runs from the date on the notice, not from the date you received it or the date the condition became a problem. Where a condition only reveals itself as unworkable during detailed design, the appeal window may already have closed, and section 73 becomes the only route.

A separate and much shorter clock applies to any legal challenge. Judicial review of a planning decision must be brought promptly and within six weeks, so if the argument is that the condition is unlawful rather than unreasonable, take advice immediately.

Evidence that a condition fails the tests

Appeals and section 73 applications turn on the same evidence, so the work is not wasted whichever route you choose.

1. Quote the condition in full and identify which of the six tests it fails
2. Show what the condition requires in practice, with the drawing or the cost of compliance
3. Show that the harm the condition addresses either does not arise or is dealt with another way
4. Where another regime already controls the matter, identify it, because a condition duplicating Building Regulations or an environmental permit is unnecessary
5. Offer alternative wording, because a decision maker presented with a workable alternative is more likely to vary than to delete
6. Deal with the reason the authority gave, not the reason you assume it had

Point five does most of the work. An appeal or application that asks for deletion and nothing else forces a binary answer, while one that offers precise alternative wording gives the decision maker a route to yes. The planning statement supporting a section 73 application should contain that wording as a tracked change against the original condition.

Costs where a condition was unreasonable

Costs are available at appeal where a party has behaved unreasonably, and the published guidance on appeals sets out the categories. Imposing a condition that plainly fails the tests, or refusing to vary one in the face of clear evidence, can fall within them.

Build the record. Write to the authority before appealing, setting out the condition, the test it fails and the alternative wording, and ask it to vary the condition under section 73 or confirm it will not. A documented refusal to engage is the evidence a costs application needs. The same correspondence often resolves the matter without any application at all, which is the better outcome.

Choosing between the two routes

Section 73 is the default. It protects the original permission, costs less, goes to the authority first and produces a decision in weeks rather than months.

Appeal under section 78 where the authority has made its position clear and will not shift, where the permission is secure enough that reconsideration carries little risk, and where you want an inspector rather than the same officer to decide. Appeal also where the condition makes the scheme undeliverable and a section 73 refusal would simply add eight weeks before the appeal you were always going to bring.

And where the authority has gone silent on a section 73 application, the non-determination options apply instead, which our guide to appealing non-determination sets out.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.