Fees for an application to remove a condition set at appeal
A section 73 application to vary an inspector's condition goes to the local planning authority at the flat fee in the regulations. The fee is the easy part; the decision letter is not.
If you want to remove condition imposed at appeal by a planning inspector, the application goes to the local planning authority, not back to the Planning Inspectorate, and it is made under section 73 of the Town and Country Planning Act 1990. The fee is the flat section 73 figure in the fee regulations rather than a fresh application fee calculated on floorspace or units. That is the cheerful part. The difficult part is that you are asking a council to unpick a condition an inspector thought necessary to make the development acceptable, and the decision letter explaining why sits on the file.
So the fee is the smallest number in this exercise.
Who determines the application
Section 73 allows an application for planning permission to develop land without complying with a condition subject to which a previous permission was granted. The previous permission's origin does not matter. A permission granted by an inspector on appeal is still a permission under the Act, and a section 73 application to vary or remove one of its conditions is made to and determined by the local planning authority in whose area the land sits.
The authority's power is limited by the section itself. On a section 73 application it considers only the question of the conditions subject to which permission should be granted. It cannot revisit whether the development should be permitted at all, and it cannot refuse on a ground unrelated to the condition in question. What it can do is grant permission subject to different conditions, or refuse, in which case the original permission with its original conditions stands untouched.
Two limits are worth stating plainly. Section 73 cannot be used to alter the description of the development, following the Court of Appeal's decision in Finney v Welsh Ministers in 2019, so a condition whose removal would change what was permitted is outside the section. And it cannot be used to vary the condition that imposes the time limit for implementation.
The fee category that applies
The fee is set by the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012 as amended. An application to remove or vary a condition attracts a flat fee, with a lower figure where the permission relates to householder development. There is no uplift for the scale of the underlying scheme, which is why a section 73 on a 200 home consent costs the same as one on a pair of semis.
Do not quote a figure from memory. The fees were uplifted in December 2023 and are indexed annually from 1 April, so take the current amount from the national fee schedule on the day you submit. An application submitted with last year's fee is invalid and the clock does not start.
Three adjacent points save money often enough to be worth checking:
- A non-material amendment under section 96A has its own lower fee and a shorter determination period, and it is the right route where the change really is non-material. It cannot remove a condition that matters.
- The repeat application concession allows one further application of the same character on the same site within twelve months of a refusal or withdrawal without a further fee, subject to the conditions in the regulations. Worth knowing if your first section 73 fails on evidence rather than on principle. The companion guide on planning fee exemptions sets out how the concession is applied.
- Where several conditions are being varied on the same permission, one application covering all of them attracts one fee. Splitting them attracts several.
The real budget lines are elsewhere: the technical evidence needed to justify removal, the agent's time, and the consequence of a refusal. The cost of a condition you cannot get rid of is covered separately in the note on a pre-commencement condition you cannot discharge.
Weight given to the inspector's reasoning
An appeal decision is a material consideration and consistency matters. The Court of Appeal's reasoning in North Wiltshire District Council v Secretary of State for the Environment in 1992 is the usual starting point: a previous decision on the same site is capable of being material, and a decision maker departing from it should give reasons. That cuts both ways, but on a section 73 it mostly cuts against you.
Read the decision letter closely and work out which of three things the condition was doing.
If the inspector imposed it to make an otherwise unacceptable development acceptable, removal attacks the basis of the permission and you need to show either that the harm has gone or that it can be dealt with another way. If the condition was imposed to secure a detail the inspector did not have evidence on, removal is easier once you supply the evidence. And if the condition was standard wording picked up from the council's suggested list without separate reasoning, the case is simply that it fails the tests for conditions in national guidance.
The third category is more common than people expect. Inspectors adopt suggested conditions under time pressure, and a condition restricting hours of use on a building that cannot be used outside those hours anyway fails the test of necessity.
Evidence needed to justify removal
The six tests are that a condition must be necessary, relevant to planning, relevant to the development permitted, enforceable, precise and reasonable in all other respects. An application to remove a condition is an argument that one or more of those tests is not met, or that circumstances have changed since the appeal.
What persuades, by condition type:
| Condition | Evidence that moves it |
|---|---|
| Hours of operation or delivery | Monitored noise data at the nearest receptor, with the plant or activity running |
| Occupancy or tie to a use | Marketing evidence over a sustained period, plus the original reason for the tie |
| Landscaping or boundary treatment | Updated survey showing what is already established and what the condition now adds |
| Highway or visibility condition | A revised access drawing agreed with the highway authority in writing |
| Restriction on permitted development rights | The reason given at appeal, and whether the circumstance it guarded against still exists |
| Pre-commencement condition requiring a scheme | The scheme itself, submitted so there is nothing left to approve |
Put the argument in a short Planning Statement that quotes the inspector's reason for the condition, states which of the six tests fails or what has changed, and attaches the technical evidence. Three pages that engage with the decision letter beat thirty that do not mention it.
Where the permission predates February 2024 and the biodiversity gain condition regime, check whether the new permission granted under section 73 would attract that condition, because the transitional provisions deal with section 73 applications specifically and the answer depends on the dates.
Where a fresh appeal is the better route
If the council refuses the section 73, you appeal that refusal to the Planning Inspectorate on the usual timescales, generally six months from the decision and twelve weeks for a householder appeal. That is a second inspector looking at a first inspector's condition, which tends to concentrate minds on the reasoning rather than on the merits of the development.
Sometimes the better route is a fresh full application. Consider it where the change you want would alter the description of development, where you also want to change the layout or scale, or where the original permission is close to expiry and a new permission with a fresh implementation period is worth having. The cost is a full fee and a full assessment against current policy, including policies that have changed since the appeal.
A judicial review of the inspector's condition is a different animal and the window is six weeks from the decision. If the appeal was last year, that door is shut.
Risk of reopening settled issues
Section 73 produces a new planning permission for the development as varied, and it carries the whole set of conditions, not just the varied one. The authority will usually reissue the conditions, updated to current drafting, and it may add conditions it considers necessary now even though the inspector did not impose them.
That is the risk. A section 73 to lose an inconvenient landscaping condition can come back with a construction management condition, an updated drainage condition and a biodiversity condition attached. The levy position can also move, because a new permission may trigger a recalculation of the charge.
Run the arithmetic before you apply. If the condition costs £4,000 to comply with and the section 73 exposes the scheme to conditions that cost more than that, leave it alone.
Deciding on the timing
Three timing questions decide most of these.
Does the condition bite before you can start? A pre-start condition you cannot satisfy stops the development and has to be dealt with first, whatever the appetite for an application.
Is the permission close to its implementation deadline? A section 73 does not extend the original time limit, so if you are three months from expiry, a lawful start on site may be the priority over any variation.
Has the policy position moved in your favour or against you? The conditions on the new permission are judged against current policy, so a plan adopted since the appeal cuts both ways. Where it has moved against you, doing nothing is a strategy.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. If you need the supporting statement drafted quickly, see PlanScope pricing for the free report, the per-report price and the Professional tier.
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 an application to remove an appeal condition go to the Planning Inspectorate?
No. Section 73 applications are made to and determined by the local planning authority, whoever granted the original permission. The council considers only the question of the conditions and cannot revisit whether the development should have been permitted. If it refuses, the refusal is then appealable to the Inspectorate in the normal way.
What is the fee for a section 73 application?
A flat fee set by the fee regulations, with a lower figure where the permission relates to householder development, and no uplift for the size of the underlying scheme. Fees were uplifted in December 2023 and are indexed annually from 1 April, so take the current figure from the national fee schedule before submitting rather than from an older note.
Can section 73 be used to change the description of the development?
No. Following the Court of Appeal decision in Finney v Welsh Ministers in 2019, a section 73 application cannot alter the description of the development permitted. If the change you want would require the description to be reworded, a fresh full application is the route. Section 73 also cannot vary the condition imposing the time limit for implementation.
Will the council add new conditions if it grants the section 73?
It can. A section 73 grant is a new planning permission carrying a full set of conditions, usually reissued in current drafting and judged against current policy. Expect updated drainage, construction and biodiversity conditions where policy has moved since the appeal, and check whether the levy liability is recalculated on the new permission.
How long do I have to appeal a refused section 73?
The general appeal period is six months from the date of the decision notice, reduced to twelve weeks for householder appeals. A challenge to the original inspector's condition by judicial review would have had to be brought within six weeks of that appeal decision, so where the appeal was some time ago the section 73 route and its own appeal are what remain.
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.