Discharge of conditions or a section 73 application

A discharge of conditions application asks the authority to approve details that a condition reserved for later approval. A section 73 application asks for permission to develop without complying with a condition, and if granted it creates a new planning permission alongside the original. The choice between discharge of conditions or section 73 therefore comes down to one question: does the condition already allow for what you want to do, or do you need the condition itself changed.

Get that wrong and you either pay a small fee for an application the authority cannot determine, or a larger fee for one you did not need.

What a discharge application does

Where a condition says that details of materials, landscaping, drainage or construction management shall be submitted to and approved in writing by the authority before a stated event, the mechanism for that approval is an application for approval of details reserved by condition.

The application is made on the standard form, carries a fixed fee per request that is indexed annually, and is determined within the normal period for a planning application, which for most schemes is eight weeks. Several conditions can be dealt with in a single request, and doing so usually costs less than submitting them separately.

What the authority is deciding is narrow. It is assessing whether the submitted details satisfy the condition, not reopening the merits of the permission. An officer who dislikes the approved scheme cannot use the discharge application to improve it, and an applicant who wants a different scheme cannot use the discharge application to get one.

Two points of discipline help. Submit against the condition's own wording, quoting it, and address each requirement in order. And submit before the trigger event, because a pre-commencement condition discharged after commencement leaves a breach on the record that is awkward to cure.

What section 73 can and cannot change

Section 73 of the Town and Country Planning Act 1990 allows an application for permission to develop without complying with conditions attached to an earlier permission. The authority considers only the question of the conditions, and it can grant permission subject to different conditions, or unconditionally, or refuse.

Two limits are settled and frequently overlooked.

The description of development cannot be changed through section 73. The Court of Appeal confirmed that position in Finney v Welsh Ministers [2019], so a section 73 application that would conflict with the description, for example by increasing the number of units where the description states a number, cannot succeed.

The time limit for implementation cannot be extended. Section 73(5) says so expressly. A section 73 permission granted years after the original therefore carries the original time limit, which catches developers who assume a fresh three years.

Changes that go to the heart of the permission are also outside the section's reach. The line is one of degree rather than a bright rule, and where a proposed change is substantial the honest advice is usually a fresh full application.

The Levelling-up and Regeneration Act 2023 introduced a further route, section 73B, intended for alterations whose effect is not substantially different from the existing permission. Check whether it is in force and what guidance applies before advising on it, because the practical scope of the new section depends on both.

Conditions that cannot be varied

Some conditions resist variation whatever the route:

• A condition that defines the development by reference to approved drawings, where varying it would in substance change the description.
• A condition imposed to satisfy a statutory requirement, where the authority has no discretion to remove it.
• A pre-commencement condition that has already been breached, since neither route cures a past breach retrospectively.
• A condition securing an obligation that is actually in a section 106 agreement, which needs a deed of variation rather than a planning application.

Where the condition is in the agreement rather than the permission, the relevant costs are the monitoring and administration charges discussed in the note on section 106 monitoring fees and administration charges.

Fees and determination compared

Check the current fee schedule rather than a figure from a previous scheme. Planning application fees are indexed, so last year's number is wrong by the time it is quoted.

Deemed discharge and when it applies

Section 74A of the Town and Country Planning Act 1990 lets an applicant serve a deemed discharge notice where the authority has not determined a discharge application within the relevant period. If the notice runs its course, the condition is treated as discharged.

The route has real limits. Whole categories of condition are excluded by the procedure order, including those relating to environmental impact assessment development, flood risk, contaminated land, highways matters and obligations under section 106. The notice procedure also has its own timing requirements, and serving it early invalidates it.

In practice deemed discharge works best as pressure. Serving notice tends to produce a determination, which is usually the outcome the applicant wanted. Relying on it to deliver a deemed approval for a technically sensitive condition is a weaker strategy.

The new permission a section 73 creates

A successful section 73 application produces a fresh permission that sits alongside the original rather than replacing it. Both remain capable of implementation, which is occasionally useful and frequently confusing.

Three consequences to track. The new permission needs a complete set of conditions, so check that the decision notice carries forward every condition still needed and does not silently drop one. Community Infrastructure Levy liability may be recalculated against the new permission, so check the charging schedule and the relevant regulations before commencement. And any section 106 agreement attached to the original permission does not automatically bind the new one, so a deed of variation or a fresh agreement is usually needed.

The distinction between section 73 and the non-material amendment route is a separate question, covered in the comparison of section 73 against section 96A.

Choosing the right application

Work through it in order. Read the condition. If it reserves details for approval and what you propose falls within what it contemplates, that is a discharge application. If what you propose conflicts with the condition's wording, it is section 73 or a fresh application.

Then test the description of development. If the change would make the permission describe something different, section 73 is unavailable.

Then test the scale of the change against the original permission. Minor and the amendment routes work. Substantial and a fresh application is both safer and, once appeal risk is priced in, often faster.

Where a refusal is the likely outcome, the appeal routes and their timescales differ by application type in the way set out in the note on householder and fast track commercial appeals. The index of report types shows the documents commonly needed to support the details themselves, which is where most discharge applications actually fail.

Draft the supporting documents for a discharge or amendment application on PlanScope, then review them against the condition wording before submission.

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.