A checklist for a section 73 variation application

A section 73 application asks the council to grant planning permission for the same development without complying with one or more conditions on an existing permission. It produces a new permission that sits alongside the original rather than replacing it, and it cannot touch the description of development. Any section 73 application checklist has to start from those two facts, because most of the problems that follow come from ignoring one of them.

Section 73 of the Town and Country Planning Act 1990 is the mechanism. Everything else is practice built on top of it.

What section 73 can and cannot change

The power is limited to conditions. The council can grant permission subject to different conditions, grant it unconditionally, or refuse, in which case the original permission survives untouched.

It cannot be used to alter the description of development. The Court of Appeal settled that in Finney v Welsh Ministers, and councils that once accepted amended descriptions no longer do. If your change requires the description to read differently, section 73 is not the route and you need a fresh application.

It cannot extend the time limit for implementation either. The statute says so directly, so a permission approaching expiry cannot be renewed this way.

And the original permission has to be capable of implementation when the section 73 permission is granted. Applying to vary conditions on a permission that has already lapsed achieves nothing.

There is one reform to watch. Section 73B, inserted by the Levelling-up and Regeneration Act 2023, creates a route for granting permission for development that is not substantially different from an existing permission, which would allow changes to the description. Check whether it has been brought into force and what secondary legislation supports it before relying on it, because that Act has been brought into force in stages. Our notes on section 73 variations as a new permission and on varying a planning condition go into the mechanics further.

Describing the variation correctly

Get the wording of the application right and half the risk disappears.

The description should follow the established form: application under section 73 to vary condition number 2 (approved drawings) of planning permission reference ABC/1234/567 dated 12 February 2024 for [the original description repeated exactly]. Repeat the original description word for word, including any typographical oddity in it.

List every condition you are varying. Applicants routinely vary the approved drawings condition and forget that the change also affects a condition requiring compliance with an approved materials schedule or a parking layout drawing. The new permission will be read against the conditions actually varied, and an unvaried condition that now contradicts the new drawings creates a defect that surfaces at discharge stage.

Documents that accompany the application

The submission looks like a small planning application because that is what it is.

1. The application form for removal or variation of a condition, with the correct fee from the current schedule.
2. The original decision notice and the approved drawings it refers to.
3. Superseded and proposed drawings, clearly numbered, with a schedule showing which drawing replaces which.
4. A covering statement setting out what is changing, why, and why the change is acceptable in planning terms.
5. Ownership certificate and notices, worked out afresh against the current ownership position.
6. Updated technical reports where the change affects them, such as a revised drainage layout or an updated noise assessment.
7. A biodiversity gain statement, since the new permission is a permission in its own right and the gain condition regime applies to it.

A short Planning Statement that compares the consented scheme against the proposed one, element by element, is worth more than a long one that restates the original case.

Consultation and the scope of assessment

The council publicises a section 73 application in the normal way, so neighbours are re-notified and will comment on whatever they like.

The assessment itself is narrower. The decision maker considers the condition being varied and the effects of varying it, with the existing permission as the realistic fallback position. That fallback is your strongest argument where the consented scheme is itself unattractive, and it should be stated plainly rather than left implied.

Policy that has changed since the original grant can be applied, which is the main risk in varying an old permission. Where the development plan has been replaced, or national policy has moved, a section 73 can expose the scheme to tests it never had to meet. Weigh that before applying, particularly on permissions granted several years ago.

The new decision notice and condition renumbering

The new permission should carry the full set of conditions from the original, as varied, re-imposed on the new notice. Councils sometimes issue a notice containing only the varied condition, which creates uncertainty about what else applies. The Supreme Court in Lambeth dealt with a version of that problem by construing the permission as a whole, but relying on a court to fix a drafting error is not a plan.

Check the draft notice before it is issued if the council will share it. Then build a cross-reference table mapping original condition numbers to new ones, and circulate it to the design team and the contractor.

Discharge decisions made under the original permission do not automatically carry across. Ask the council to confirm in writing which discharges it treats as satisfying the equivalent conditions on the new permission, and keep the reply.

Effect on the original permission and on CIL

Both permissions exist. You implement one of them, and you cannot pick conditions from one and drawings from the other.

Decide which you are implementing and record the decision. Where work has already started under the original permission, take advice before relying on the new one, because the interaction between part-implementation and a fresh permission is a recurring source of dispute.

The levy position needs handling too. A section 73 permission is a new chargeable development for Community Infrastructure Levy purposes, so the liability is recalculated, and fresh assumption of liability and commencement notices are usually required. Getting this wrong loses relief and triggers surcharges, and it is the most expensive administrative error in the whole process.

When section 96A is the better route

Section 96A allows a non-material amendment to an existing permission. It amends the permission rather than creating a new one, carries a lower fee, has a 28-day determination period, and requires no statutory publicity.

There is no statutory definition of non-material, and each council applies its own judgement. Window position changes, small dimensional adjustments, drawing number corrections and materials substitutions of like quality often go through section 96A. Anything with an external effect a neighbour might notice usually does not.

Ask the case officer which route they will accept before submitting. A rejected section 96A wastes a month, and the fee is not returned.

A pre-submission checklist

Original description copied exactly. Every affected condition listed. Drawing schedule showing supersession. Fee checked against the current schedule. Certificates redone. Policy changes since the original grant assessed. CIL consequences understood. Fallback argument written down. Cross-reference table ready for the new notice.

Work through that in an hour and the application will not come back.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.

You can browse the report types a varied scheme may need and start a draft. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.