Deeds of variation on a section 73 permission

A section 73 permission is a new planning permission, not an amendment to the old one. That single point is the origin of almost every problem with a section 106 deed of variation on a section 73 application. If the original deed binds only the permission identified in it by date and reference number, and the section 73 application produces a permission with a new date and a new reference, the obligations may not bind development carried out under the new consent at all.

Councils know this. Their legal teams will not issue the section 73 decision until the position is fixed, which is why an application that looked like a three-month exercise sits waiting on conveyancing.

Why the original obligation may not bind the new permission

Read the definition clause. A deed that defines "the Permission" as "the planning permission to be granted pursuant to application reference 21/01234/FUL" captures one permission and nothing else. Development under a later section 73 consent is development under a different permission, and the covenants, which are usually expressed to apply to the carrying out of the Development pursuant to the Permission, are not engaged.

Some deeds are drafted better. A definition extending to "any permission granted pursuant to section 73 of the Act varying or amending the Permission" solves the problem before it arises, and it costs nothing at the drafting stage.

Others are ambiguous, which is the worst case, because it produces an argument between two sets of solicitors at the end of a determination period. Where the wording is unclear, the practical answer is usually to enter a supplemental deed rather than to argue the construction point.

Reading the definition of the permission in the deed

Work through four clauses before advising the client on cost or timing.

1. The definition of the Permission and whether it extends to section 73 consents.
2. The definition of the Development, which may be tied to specific approved drawings.
3. The trigger events, which often refer to the start of development or to occupation of the Development as defined.
4. Any clause dealing with subsequent permissions, sometimes buried in the general provisions.

The definition of Development matters as much as the definition of Permission. Where the obligations are triggered by occupation of a defined number of units, and the section 73 application changes that number, the triggers may no longer work even if the deed does bind the new permission.

Check the title as well. The deed binds the land, so a change of ownership or a new charge since the original agreement adds parties to the new document.

Supplemental deed against deed of variation

The two terms are used loosely in practice, and the distinction matters.

For a straightforward section 73 that does not change the obligations themselves, the supplemental route is quicker. Where the variation also changes unit numbers or affordable housing provision, the council will often want the two documents combined, and the negotiation then reopens the substance.

Be clear with the council's solicitor at the outset which document you are proposing. Drafting the wrong instrument and sending it out costs a fortnight.

Who needs to be a party, including mortgagees

Every person with an interest in the land that could defeat the obligation should be a party. In practice that means the freeholder, any leaseholder with a long lease, and any mortgagee.

But mortgagee consent is the item that delays completion. A lender who took security four years ago has to be identified, contacted, and taken through an internal approval process that has nothing to do with the planning timetable. Start that conversation the week the section 73 application is submitted.

Where the land has been sold in part, or where a management company now owns common areas, there may be several parties. Pull an up to date official copy of the register before drafting, not after.

Guarantors and, on larger sites, a promoter or option holder may also need to join. The council's standard instructions usually name the categories it expects.

Timing against the decision date

The supplemental deed must be completed before the section 73 permission is issued, because once the decision has been issued the council has lost its bargaining position and the applicant has lost the incentive.

That creates a straightforward sequencing rule. Agree the form of the deed during the determination period, circulate engrossments for execution as the officer report is finalised, and hold the decision until completion. Most councils have a standard process for this.

Where an extension of time is needed, agree it early and in writing. A refusal issued because the deed was not completed within the statutory period is an avoidable outcome, and an appeal against it wastes six months.

Costs and the council's legal undertaking

The council will require an undertaking for its legal costs before its solicitor starts work. The undertaking is usually capped, and the cap should be agreed rather than accepted blind.

Budget for the applicant's own legal fees, the council's costs, the cost of obtaining mortgagee consent, and the land registry fees for registering the deed. On a small scheme these can exceed the cost of the section 73 application itself, which surprises clients who thought they were making a minor change.

Where obligations involve contributions that have already been paid or partly spent, the accounting position should be reflected in the new document, and the council's own infrastructure funding statement is a useful cross-check on what has been received and allocated.

Drafting that avoids the problem next time

Four provisions prevent most of this. Define the Permission to include any section 73 permission varying it. Define the Development by reference to the approved scheme generally rather than to a fixed drawing list. Draft triggers by reference to proportions or phases rather than absolute unit numbers. Include a mechanism for adding future permissions without a full renegotiation.

Also keep in mind that section 73 cannot be used to vary the description of development itself, following the Court of Appeal's decision in Finney v Welsh Ministers. Section 73B, introduced by the Levelling-up and Regeneration Act 2023 to provide a wider route for changes that are not substantially different, has its own timetable for coming into force, so check where that stands before advising on route.

Where the variation touches affordable housing, the tenure and mix in the original Affordable Housing Statement is the reference point, and any change there will be treated as a policy matter rather than a drafting one. The same is true where the original scheme was student accommodation, as discussed in student accommodation planning contributions.

A short covering note with the section 73 application, confirming that the applicant will enter a supplemental deed and naming the solicitors, gets the council's legal team engaged on day one. The Planning Statement is the natural place to say it.

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.