Section 73 application: what it means in planning
Section 73 does not amend a permission. It creates a second one, which is why obligations, levy liability and discharged conditions all need checking again.
A section 73 application asks the council for planning permission to carry out a development without complying with one or more conditions attached to an earlier permission. If it succeeds, you do not get an amended version of the original permission. You get a second, separate planning permission that sits alongside the first.
That structural point explains almost every practical difficulty people have with section 73, from planning obligations that no longer bite to levy liabilities that change.
Where the term comes from
Section 73 of the Town and Country Planning Act 1990 allows an application for permission for the development of land without complying with conditions subject to which a previous permission was granted. The council considers only the question of the conditions. If it decides the conditions should not be imposed, or should be imposed differently, it grants a new permission accordingly. If it decides they should stand as they are, it refuses.
In practice this is the route used for what planners call a minor material amendment. That phrase appears nowhere in the Act. It is a description of the sort of change section 73 handles well: a design tweak, a revised house type, a repositioned window, a changed material, an altered phasing arrangement.
What it produces
The new permission is a fresh grant. It carries its own reference number, its own decision notice and its own set of conditions, and it must repeat the conditions from the original that are still needed.
The original permission does not disappear. It remains extant and can still be implemented if the developer prefers it, which is occasionally useful where a section 73 turns out to carry an unwelcome new condition.
Because it is a new permission, a council can impose conditions that were not on the original, provided they meet the usual tests. That is the risk in the process, and it is why a section 73 application should always be read as an opportunity for the authority to revisit the condition set rather than as a simple edit.
We have set out the mechanics of that second permission in more detail in a companion note on section 73 variations.
What it cannot do
Three limits matter.
It cannot be used to change the description of development. The Court of Appeal settled that in Finney in 2019. If the description says "erection of two dwellings" and you now want three, section 73 is not available and a fresh application is needed.
It cannot be used to extend the time limit for implementation. Section 73(5) says so expressly. A permission approaching expiry cannot be renewed this way.
And it cannot be used at all once the original permission has expired without having been lawfully begun. There is nothing left to vary. Where development has been lawfully started, the position is different, because the permission has been implemented.
An illustrative example
This example is illustrative rather than a real case. A permission for eight houses carries a condition requiring the dwellings to be constructed in facing brickwork of a specified type, and a condition requiring a landscaping scheme to be implemented in the first planting season.
The developer finds the specified brick has a 40 week lead time and wants to substitute an alternative. A section 73 application to vary the materials condition is the right route. The description of development does not change, the number of units does not change and only the condition wording moves.
The council grants a new permission, repeating the landscaping condition, varying the materials condition to refer to the new brick, and adding a condition requiring a sample panel on site before construction of the external walls. That extra condition is lawful and the developer has to live with it.
Had the developer wanted nine houses instead of eight, the description would have changed and a new full application would have been required.
Section 73 against section 96A
Section 96A of the same Act provides for a non-material amendment. It is a different creature.
| Feature | Section 73 | Section 96A |
|---|---|---|
| What it changes | Conditions on an existing permission | The permission itself, non-materially |
| Result | A new, separate planning permission | The original permission, amended |
| Public consultation | Normally publicised and consulted on | No statutory consultation requirement |
| Determination period | The standard period for the application type | Commonly 28 days |
| Typical use | Design changes, revised layouts, altered conditions | Small corrections, minor dimensional changes, plan number updates |
There is no statutory definition of non-material, and councils apply their own judgement to what qualifies. Anything a neighbour might reasonably object to is unlikely to be treated as non-material.
Our checklist before submitting a section 73 application covers the practical decision between the two.
Obligations, the levy and the traps
The traps all follow from the new permission being new.
A section 106 agreement is tied to the permission it was entered into for. Grant a new permission and the obligations may not attach to it, which means a deed of variation or a supplemental agreement is needed. Councils normally spot this. Where they do not, a developer can end up implementing a permission with no affordable housing obligation attached, which is a problem for everyone once it is noticed.
Community Infrastructure Levy liability can be recalculated on a section 73 permission, and the calculation uses the rates and indexation applying at the time. On a scheme permitted several years earlier, that recalculation can move the figure materially. Check it before applying rather than after.
Conditions requiring approval before works start, already discharged on the original permission, may need to be discharged again on the new one, because approvals attach to conditions and the conditions are technically new. Ask the case officer to carry them across expressly.
Finally, a section 73 permission granted late in the life of the original does not get a fresh implementation period running from its own date in the way people assume. The time limit condition on the new permission is normally expressed by reference to the original.
What to do if it applies to your site
Work through five questions.
- Does the change alter the description of development? If yes, section 73 is not available.
- Is the original permission still capable of implementation, or has it been lawfully begun?
- Is the change material enough to need section 73, or would section 96A do?
- What happens to the section 106 obligations and the levy liability?
- Which conditions on the original still need repeating, and which could the council now add?
Then submit the application with a short Planning Statement that identifies the original permission, quotes the condition to be varied, sets out the proposed new wording and explains why the variation is acceptable. Councils refuse fewer applications that hand them the replacement wording than applications that describe a problem. Our note on varying a planning condition sets out how to frame that wording.
This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. Provisions in the Levelling-up and Regeneration Act 2023 would add a further route for amending permissions, and whether they are in force should be verified at the time you apply.
Enter your postcode on PlanScope to draft the supporting documents a variation application needs. 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 a section 73 permission replace the original?
No. It is a separate grant with its own reference and conditions, and the original permission remains extant. The developer chooses which to implement. That is occasionally useful where the section 73 permission carries a new condition the developer would rather avoid, although only one of them can be built out.
Can section 73 change the description of development?
No. The Court of Appeal confirmed in Finney in 2019 that section 73 cannot be used to vary the description of development. If the number of units, the type of use or the fundamental nature of the scheme changes, the description changes with it and a fresh planning application is required.
Can it extend the time limit for implementation?
No. Section 73(5) expressly prevents an application under the section from varying a condition specifying the time within which development must be begun. A permission approaching expiry cannot be renewed this way, and once a permission has expired without being lawfully begun there is nothing left to vary.
What happens to the section 106 agreement?
The original agreement is tied to the original permission, so a new permission may need a deed of variation or a supplemental agreement to carry the obligations across. Raise this with the council early, because completing a deed takes time and the section 73 permission is of little use without it.
When should I use section 96A instead?
Where the change is genuinely non-material, such as correcting a plan reference, a small dimensional change or a minor detail no neighbour would object to. Section 96A amends the existing permission rather than creating a new one, has no statutory consultation requirement and is usually determined in about 28 days.
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.