Section 73 or a fresh application: cost and risk
A section 73 application costs a flat fee, but it cannot change the description of development or extend the time limit, and it triggers a levy recalculation. Here is how to choose on risk rather than fee.
The fee difference between a section 73 application and a fresh full application is usually the smallest number in the decision. A section 73 application to vary a condition attracts a flat fee per application. A fresh application for a scheme of any size is charged on units or floorspace and can be many times that. Yet on a scheme where the levy recalculation, the section 106 position or the implementation date is in play, the cheaper route can cost far more.
So decide on risk and programme, then check the fee. The question is which permission you want to be holding at the end.
What section 73 can and cannot change
Section 73 of the Town and Country Planning Act 1990 allows an application for permission to develop without complying with a condition previously imposed. The authority considers only the condition or conditions in question, and it either grants a new permission with the condition removed or varied, or refuses and leaves the original permission intact.
Three limits matter in practice.
It cannot change the description of development. If the permission describes the development in terms that the variation would contradict, for example a stated number of dwellings or a stated height, section 73 is not available for that change. This is the point that trips up minor material amendment applications more than any other, and case law has confirmed it clearly.
It cannot extend the time limit for implementation. The statute says so directly, so a permission approaching expiry cannot be renewed this way, and once it has expired there is nothing to vary.
It does not reopen the principle of development. That is the advantage. The authority is not entitled to revisit whether the scheme should have been permitted, and a change in policy since the original grant is relevant only to the condition under consideration.
The Levelling-up and Regeneration Act 2023 inserted a further route, a new section 73B, allowing an application to vary an existing permission where the resulting development would not be substantially different. Whether it is in force, and what the associated regulations require, needs checking as at the date of your application, because commencement of the 2023 Act's planning provisions has been staged.
The fee difference in practice
Set the numbers out for the client in the same table as the risks, because the fee on its own is misleading.
| Section 73 | Fresh full application | |
|---|---|---|
| Fee basis | Flat amount per application | Units or floorspace |
| Scope of consideration | The condition in question | The whole scheme |
| Time limit for implementation | Carried from the original permission | New period from the grant |
| Conditions | New permission, conditions re-imposed | Entirely new set |
| Section 106 | May not carry across without a deed of variation | New agreement or deed |
| Levy position | Recalculated, often at current rates | Calculated afresh |
A non material amendment under section 96A is a third option with a smaller fee again, available only where the change is not material. Where the authority disagrees that it is non material, you lose the time spent and start again under section 73.
Reopening the scheme, and the risk of it
The principle is safe. The conditions are not.
A section 73 grant is a new planning permission, and the authority will normally restate all the conditions from the original permission in the new one. Conditions drafted in 2016 get re-imposed in the authority's current standard form, which is often longer, tighter and more prescriptive. A condition you had discharged may reappear as an undischarged pre-commencement condition unless you ask for it to be recorded as satisfied.
Two other live issues.
Biodiversity net gain. The statutory gain condition applies to permissions granted under the 1990 Act subject to exemptions and transitional provisions, and section 73 applications on older permissions have been a recurring area of uncertainty. Check the current transitional rules before applying, because bringing a pre-regime permission into the net gain regime by varying a condition would be an expensive way to save a fee.
Planning obligations. A section 106 agreement attached to the original permission does not automatically bind a new permission granted under section 73 unless it was drafted to do so. Well drafted agreements say they apply to any permission granted pursuant to section 73, and many older ones do not. If yours does not, you need a deed of variation, with the authority's legal costs and its own timetable, and the authority may use the opportunity to revisit the heads of terms.
The levy consequence
This is the number that most often makes the fresh application look like the bargain. A section 73 permission triggers a recalculation of the Community Infrastructure Levy liability. The abatement provisions in the levy regulations are designed to give credit for the amount already payable, but the recalculation uses the rates and indexation applying at the time of the new permission.
On a scheme consented several years ago, in an authority that has since adopted a new charging schedule, or simply after several years of index movement, the recalculated figure can be materially higher. Work it out before you submit, using the method set out in the guide to how a levy charge is calculated, and be careful about the commencement position, because the interaction with notices is where the surcharges live, as the note on commencement notice surcharges explains.
Effect on the implementation period
Section 73 cannot extend the time limit, and the new permission carries the original date for commencement of development. That produces a practical sequence to get right.
- Check the expiry date of the original permission before anything else.
- If there is less than a year to run, consider implementing the original permission first, then applying under section 73 to vary the scheme.
- If it has already expired, section 73 is unavailable and a fresh application is the only route.
- If you need a longer period as well as a change, a fresh application gives you both.
The trade off in point four is real. A fresh application resets the clock and gives a clean set of conditions, and it exposes the scheme to current policy, current fees, current levy rates and a fresh round of consultation.
Where a fresh application is safer
Choose the fresh application where the change touches the description of development, where unit numbers or floorspace increase beyond what could sensibly be called a variation, where the original permission is near or past expiry, where the design change is fundamental rather than incremental, or where you want a clean consent to sell or to fund.
Add one more case: where the original permission carries conditions you would rather see rewritten. A section 73 route preserves the awkward wording alongside the change, while a fresh application lets you negotiate the whole set. On a scheme where discharge has been painful, that is worth more than the fee saving.
Deciding on programme rather than fee
Programme usually decides it. A section 73 application on a minor scheme runs to the eight week period and a major to thirteen weeks, with the same publicity and consultation requirements as any other application, so it is not a quick administrative fix. A fresh application on a major scheme takes the same thirteen weeks, plus the time to prepare a full document set, plus any section 106 negotiation.
Against that, holding costs on a stalled site dwarf both fees. Where the change unlocks a start on site, the faster route wins even if it costs more. Where the change is about marketability rather than deliverability, take the cleaner consent.
Set out the recommendation in the Planning Statement with the reasoning visible, including the levy calculation and the section 106 position, so that the client is choosing with the risks priced. The cost of getting this wrong is the same order as the cost of an invalid submission, which is set out in the note on the real cost of an invalid planning application.
Draft the supporting statement for either route on PlanScope, and see pricing for the per report and unlimited options.
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 current commencement position for the 2023 Act provisions and take advice on the section 106 and levy consequences before applying.
Frequently asked questions
What can section 73 not be used for?
It cannot change the description of development, so a variation that contradicts the operative wording of the permission is outside its scope. It cannot extend the time limit for implementation, which the statute states directly. And it cannot be used at all once the original permission has expired, because there is nothing left to vary.
Does a section 73 application reopen the whole scheme?
Not the principle of development, which is the main advantage. The authority considers only the condition in question. The conditions are another matter: the grant is a new permission and the authority will normally restate every condition in its current standard form, which is often tighter than the wording you had.
What happens to my section 106 agreement?
It binds the new permission only if it was drafted to apply to permissions granted under section 73. Many older agreements were not, in which case a deed of variation is needed, with the authority's legal costs and its own timetable. The authority may also use the opportunity to revisit the heads of terms.
Does section 73 change my levy liability?
Yes, it triggers a recalculation. The abatement provisions give credit for the amount already payable, but the recalculation uses the rates and indexation applying when the new permission is granted. On an older consent, or after a new charging schedule, the figure can rise materially, so calculate it before submitting.
Is a non material amendment a better option?
Where the change really is not material, yes, because the fee is smaller and the process shorter. The risk is that the authority disagrees, in which case you lose the time and start again under section 73. Use it for drawing corrections and small detail changes rather than anything affecting scale, layout or unit numbers.
When should I submit a fresh application instead?
Where the change touches the description of development, where floorspace or unit numbers rise beyond a variation, where the permission is near or past expiry, where the design change is fundamental, or where you want a clean consent with a fresh implementation period and a renegotiated set of conditions to sell or fund.
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.