Section 73 against section 96A: changing an approved scheme
One route creates a fresh permission with conditions that must be read line by line. The other changes the existing permission with no consultation at all.
Changing an approved scheme goes through one of two routes, and choosing the wrong one wastes a determination period. Section 73 of the Town and Country Planning Act 1990 varies or removes a condition and produces a new planning permission. Section 96A amends the existing permission where the change is not material, and leaves that permission in place. A section 73 or section 96A application therefore has different consequences well beyond the fee.
The short rule is this. If the change is not material, use section 96A. If it is material but the description of development still holds, use section 73. If the description no longer holds, neither route works and a fresh application is needed.
What each route can change
Section 96A allows the authority to make a non-material change to a permission. The Act does not define non-material, so it is a judgement on the facts, taking account of the scale of the change against the scale of the development and its effects. The route can add, remove or alter conditions as part of the change, provided the overall effect remains non-material.
Section 73 is an application for permission to develop without complying with a condition previously imposed. The authority can grant permission subject to different conditions or refuse, and its consideration is limited to the conditions rather than reopening the principle of development.
Neither route can change the description of development. That limit does most of the work in practice. Adding a dwelling, changing a use class, extending the red line, or altering anything recited in the description takes the change outside both routes.
Where drawings are listed in a condition, which is the usual arrangement, amending the approved drawings is done through section 73 by varying that condition. That is why so many design changes travel by the section 73 route even when they feel modest.
The fresh permission a section 73 creates
A section 73 decision produces a new planning permission that sits alongside the original. The original is not cancelled, and both can in principle be implemented, although only one scheme can be built.
Three consequences follow, and all three are regularly missed.
The new permission carries its own conditions, and they have to be drafted afresh rather than assumed to carry across. Any condition the authority does not reimpose is gone. Any condition already discharged on the original permission may need discharging again on the new one unless the wording deals with it.
The implementation time limit on a section 73 permission runs from the original grant, not from the new decision, so the route does not extend the life of a permission.
And the section 106 obligation attached to the original permission does not automatically attach to the new one. Councils normally require a deed of variation or a supplemental agreement to tie the obligation to the section 73 permission, with its own legal costs and party consents.
The practical detail of preparing one of these applications is covered in the section 73 checklist before you submit, and the consequences of the fresh permission are set out in section 73 variations and the new permission.
Consultation, publicity and who gets a say
This is the difference that matters most to third parties.
A section 73 application is determined as an application for planning permission, so it attracts the usual publicity and consultation, and neighbours and consultees can comment. It can be referred to committee. Refusal carries a right of appeal.
A section 96A application has no statutory requirement to publicise, notify or consult, and there is no right of appeal against refusal. Some authorities consult voluntarily on larger schemes, but that is a choice rather than a duty.
For an applicant, the absence of consultation is the main attraction of section 96A and the main reason authorities scrutinise materiality carefully. A council that approves a contentious change without consultation absorbs the complaint that follows.
Fees, timescales and procedure
| Section 96A | Section 73 | |
|---|---|---|
| Effect | Amends the existing permission | Creates a new permission alongside the original |
| Description of development | Cannot change | Cannot change |
| Publicity and consultation | No statutory requirement | Full publicity and consultation |
| Determination period | Ordinarily 28 days | Ordinarily 8 weeks for minor development |
| Appeal against refusal | None | Yes |
| Fee | Fixed sum, lower for householder applications | Set fee, lower than a full application |
Fee levels are set nationally and change with the fee regulations, which are indexed, so check the current schedule rather than a figure from a previous application.
The timescale difference is often what drives the choice under pressure. A change identified during construction, with a contractor on site, is worth a great deal if it can be handled in four weeks rather than ten. That pressure is also why marginal cases get pushed towards section 96A and refused.
The conditions trap
The most expensive mistake on a section 73 is treating the new decision notice as a copy of the old one with one condition changed.
Read every condition on the new notice against the old. Check whether pre-commencement conditions have been reimposed, whether conditions already discharged have been repeated, whether any new condition has appeared, and whether the approved drawing numbers listed are the right ones.
Where conditions have been discharged on the original permission, ask the authority to reflect that in the wording of the new permission, or to confirm in writing that the discharges carry across. That request is far easier before the decision is issued than afterwards. The mechanics of varying a single condition, including how the replacement wording is proposed, are covered in section 73 and varying a planning condition.
Where the change is large enough that neither route works, the question becomes which type of fresh application to make, and householder application or full application covers that choice on smaller schemes.
Deciding which route to use
Work through it in order.
- Does the change alter the description of development. If yes, neither route works.
- Is the change material, judged against the scale and effects of the permitted development. If no, section 96A is available.
- Is the change delivered by varying a condition, including the approved drawings condition. If yes, section 73 is the route.
- Is there a section 106 obligation. If yes, budget for a deed of variation on the section 73 route.
- Have conditions already been discharged. If yes, plan how they will be dealt with on the new permission.
- Is timing critical. If so, weigh the shorter section 96A period against the risk of refusal with no appeal.
Where a change is arguable either way, a conversation with the case officer before submission is worth more than a considered guess. Officers will usually say which route they would accept, and a section 96A submitted against an officer's view is a wasted fee and a wasted month.
Set out the reasoning in the covering Planning Statement, identifying the route, why it is the right one, and what the change does and does not affect. A short, clear statement of materiality makes the officer's decision easier to write, and that matters more than the length of the submission.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
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Frequently asked questions
Can a section 73 application change the description of development?
No. Neither section 73 nor section 96A can alter the description of development. Section 73 permits development without complying with a condition previously imposed, and the authority's consideration is limited to the conditions. A change to the description requires a fresh planning application.
Does a section 73 permission extend the implementation deadline?
No. The time limit for implementing a section 73 permission runs from the date of the original grant rather than from the new decision. Using the route to buy time does not work, and a permission close to expiry will still expire on its original date.
What happens to conditions already discharged when a section 73 is granted?
They do not automatically carry across to the new permission. Read every condition on the new notice against the old one, and ask the authority before the decision is issued either to reflect the discharges in the wording or to confirm in writing that they carry across.
Does a section 106 agreement follow a section 73 permission?
Not automatically. Because section 73 creates a new permission, councils normally require a deed of variation or supplemental agreement to tie the existing obligation to it, with its own drafting cost, council legal fee and party consents. Budget for that whenever a section 73 is likely.
Is there an appeal against refusal of a non-material amendment?
No. Section 96A carries no right of appeal, which is the other side of the light procedure that involves no publicity or consultation. A refused amendment has to be resubmitted, pursued as a section 73 application, or dealt with through a fresh application.
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.