Discharging a condition or varying it under section 73

The discharge of conditions vs section 73 question comes down to one thing: are you satisfying the condition as written, or changing what it says. An application for approval of details submits the information the condition asked for. A section 73 application asks for permission to develop without complying with the condition, and grants a fresh permission with the condition removed or reworded.

Architects meet both on the same project, often in the same month, and the fee and timetable consequences of picking the wrong one are worse than they look.

What approval of details involves

Conditions requiring something to be submitted and approved are discharged by application to the local planning authority under the Development Management Procedure Order 2015. You identify the permission, list the conditions you are discharging, and submit the material each one asks for.

The authority either approves the details, refuses them, or asks for more. The determination period is eight weeks, though most straightforward discharges are decided faster where the submission is complete.

Two habits make this go well. Submit one application per group of related conditions rather than one covering everything, because a bundled application moves at the speed of its slowest consultee. And address each condition under its own heading with its own document list, so the officer can sign off the ones that are ready.

The decision does not change the permission. It records that a requirement has been satisfied.

When a condition cannot be complied with as drafted

Sometimes the condition asks for something the scheme can no longer deliver. The approved materials are discontinued. The approved window detail conflicts with the Part L calculation. The condition ties development to a drawing number that has been superseded.

That is section 73 territory. Section 73 of the Town and Country Planning Act 1990 allows an application to develop without complying with conditions previously imposed, and if granted it creates a new planning permission that sits alongside the original rather than replacing it.

Three limits are worth knowing before you start.

You cannot use section 73 to change the description of development. The Court of Appeal decision in Finney v Welsh Ministers settled that, and an application that would alter the description will be refused or treated as invalid.

You cannot use it to extend the time limit for implementation. Section 73(5) rules that out directly.

And the new permission is a separate permission, so any obligations under a section 106 agreement attached to the original do not automatically follow. A deed of variation is usually needed, and that is the step most often forgotten.

The Levelling-up and Regeneration Act 2023 inserted a further route, section 73B, allowing variations where the effect would not be substantially different from the existing permission, including changes to the description. Check the commencement position and any transitional arrangements before relying on it, because the practical availability of that route has moved.

Fees and determination periods for each

Both fees are set by national regulations and indexed annually, so check the current schedule on the Planning Portal rather than working from last year's figure.

That last row in the table causes real trouble. A section 73 decision re-imposes all the conditions, which means every condition you had already discharged on the original permission has to be discharged again on the new one unless the decision notice says otherwise. Ask the case officer to carry the discharged conditions across, in writing, before the decision is issued.

Deemed discharge and where it applies

Section 74A of the 1990 Act allows some conditions to be treated as discharged where the authority has not determined the application in time. The applicant serves a deemed discharge notice no earlier than six weeks after the application was received, and the discharge takes effect after a further period unless the authority determines the application first.

It is narrower than it sounds. A list of excluded categories in the Development Management Procedure Order takes a range of conditions out of the regime, including those attached to environmental impact assessment development and several subject areas where the consequences of a default approval would be serious.

Use it as pressure rather than as a plan. Serving notice tends to produce a decision, which is usually what you wanted.

Pre-commencement conditions and building first

Since the Neighbourhood Planning Act 2017 amendments, a local planning authority cannot impose a pre-commencement condition without the applicant's written agreement. That gives you a moment of influence at decision stage that is worth using, because renegotiating afterwards is harder.

Where a pre-commencement condition does exist, the consequence of starting work without discharging it is severe. Operations carried out in breach of a condition precedent can be treated as not lawfully commencing the permission, which in turn means the permission may expire unimplemented. That is the doctrine practitioners refer to as the Whitley principle, and it is the reason a contractor's early start on a site strip is a real risk rather than a paperwork issue.

Breach of a condition after commencement is enforceable by breach of condition notice, against which there is no appeal.

Evidence packs that get approved first time

Officers reject discharge applications for predictable reasons. Build the pack against them.

1. Quote the condition in full at the top of each section, so the officer does not have to find the decision notice.
2. Provide exactly what the condition asks for, in the format it specifies, and say where each requirement is met.
3. Include any consultee sign-off the condition depends on, such as the highway authority's acceptance of a construction management plan.
4. Use drawing numbers and revisions that match the approved set, and list superseded drawings explicitly.
5. Where a sample or physical material is required, arrange the site visit before submitting rather than waiting to be asked.
6. Name a contact who can answer a technical query within a day.

Point three is where most delays come from. A condition requiring approval in consultation with another body is only as fast as that body, and sending them the material in parallel saves weeks.

Sequencing both on one project

The order matters when you need both. Where a section 73 application is coming, do not spend money discharging conditions on the original permission that will be re-imposed on the new one.

Where work has already started under the original permission and the section 73 permission will be implemented instead, take advice on which permission the development is being carried out under, because a hybrid position is difficult to unwind. And where the variation is small enough, consider whether a non-material amendment under section 96A does the job instead, which is quicker and costs less but cannot be used for anything material.

For the wider question of which consent route to use in the first place, our comparisons of prior approval and planning permission and of lawful development certificates and planning permission cover the choices upstream of this one, and outline or full permission for a small site deals with how many conditions you end up with in the first place.

A well-drafted Planning Statement accompanying a section 73 application should explain what has changed, why, and why the effect is acceptable. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.

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