Section 73 or section 96A: choosing the right route
Section 73 creates a new planning permission; section 96A amends the one you hold. The difference decides your fee, your timescale, your appeal rights and what happens to the section 106 agreement.
If the change you want alters a condition, use section 73. If it alters the approved drawings in a way nobody would notice on site, use section 96A. That is the working rule for choosing between section 73 or section 96A of the Town and Country Planning Act 1990, and it holds for most schemes, though the consequences of each route differ far more than the application forms suggest.
Section 73 grants a new planning permission. Section 96A amends the one you already have. Everything else follows from that.
What each provision actually allows
Section 73 is an application to develop land without complying with a condition attached to an earlier permission. The local planning authority considers only the condition in question, decides whether it should be imposed differently or at all, and if it agrees, issues a fresh permission carrying the amended condition and all the others that still apply.
Section 96A allows the authority to make a non-material amendment to an existing permission on the application of anyone with an interest in the land. It can alter the terms of the permission, including adding, removing or altering conditions, so long as the change is non-material. The original permission survives, amended.
In practice, section 73 does the work when an approved plans condition needs to list a different drawing number, when a phasing or trigger condition has become undeliverable, or when a materials or hours condition needs adjusting. Section 96A handles the small stuff: a window moved a few hundred millimetres, a corrected drawing reference, a flue relocated on a rear elevation.
The test for a non-material amendment
There is no statutory definition of non-material. The authority judges it on the facts, considering the effect of the change on the permission as a whole and on anyone who might be affected by it. Scale matters, context matters, and a change that is non-material on a warehouse in an industrial estate may be material on a listed terrace.
Three questions tend to decide it. Would the change be visible from any public vantage point or from a neighbouring property? Would anyone who was consulted on the original application have commented on it? Does it alter anything the officer report relied on when recommending approval?
If the honest answer to any of those is yes, the authority will refuse to treat it as non-material, and there is no right of appeal against that refusal. You simply lose the application fee and start again. Authorities differ in where they draw the line, so a pre-submission email to the case officer with the superimposed drawing is worth the ten minutes it takes.
Changes neither route can deliver
Section 73 cannot be used to change the description of development on the original permission. That is settled, and it is the single most common mistake in applications of this kind: if the approved description says four dwellings and you want five, no condition variation gets you there. A fresh full application is the only route.
Section 73 also cannot extend the time limit for implementation. Section 73(5) says so expressly. If a permission is close to expiry the choice is to implement it lawfully by carrying out a material operation, or to apply again.
Neither provision can rescue a condition that has already been breached in a way that renders the development unlawful, and neither can vary a condition on a permission that has expired. A section 96A amendment also cannot be used where the effect is to make the development substantially different from the one permitted.
Section 73B, inserted by the Levelling-up and Regeneration Act 2023, creates a further route for varying permissions where the effect is not substantially different from the existing scheme. Check whether it is in force, and whether your authority is accepting applications under it, before you plan a programme around it.
Fees, timescales and publicity
| Section 73 | Section 96A | |
|---|---|---|
| Statutory determination period | Eight weeks for minor development | 28 days |
| Publicity and consultation | As for the original application type | Not required, though some authorities notify |
| Right of appeal | Yes, under section 78 | No |
| Fee | Set by the national fee regulations, indexed annually | Lower flat fee, with a reduced rate for householder permissions |
| Result | A new planning permission | The existing permission, amended |
Planning fees are uplifted by indexation, so take the current figures from the published fee schedule rather than from a previous invoice. The 28 day period for section 96A is the reason agents reach for it under time pressure, and it is also the reason authorities resist using it for anything borderline.
The new permission a section 73 creates
This is where schemes come unstuck. A section 73 decision produces a standalone permission. The original permission remains in existence and can still be implemented, which is occasionally useful and more often confusing. The new permission carries its own decision notice, its own conditions and its own set of approved drawings.
Two practical consequences follow. First, the conditions on the new permission must be complete: if the authority drafts it carelessly and omits a condition from the original, that condition no longer binds the new permission. Read the draft decision notice line by line against the original before it is issued.
Second, discharge of conditions has to be tracked against the right permission. Approvals obtained under the original permission do not automatically carry across, and site teams working from a file of discharge letters that reference the superseded reference number are a recurring source of enforcement correspondence. Our section 73 application checklist sets out what to assemble before submitting, and the note on the new permission a section 73 creates goes into the drafting traps in more detail.
Obligations, the levy and the paperwork that follows
A section 106 agreement attached to the original permission does not automatically bind the new permission created under section 73. Well drafted agreements say that they apply to any permission granted under section 73 in respect of the development, and many do. Older agreements often do not, in which case a deed of variation or a supplemental deed is needed, and that takes longer than the planning application itself.
Community Infrastructure Levy liability is recalculated on the section 73 permission, with credit given for the chargeable amount under the earlier permission. If the amendment increases floorspace, expect a further charge. If it reduces floorspace, the credit mechanism limits what comes back. Submit a fresh assumption of liability notice, and serve the required notice before work starts on the permission you actually build out.
Illustrative example: a scheme of nine dwellings varies its approved plans condition to change house types on three plots. Floorspace rises slightly, so a revised levy calculation is issued. The original agreement secured an off-site contribution and was silent about future section 73 permissions, so a supplemental deed was required before the new permission could be issued. The planning application took eight weeks. The deed took four months.
Choosing between them in practice
Start with what has to change on the decision notice. If a condition has to read differently, it is section 73. If only a drawing has to be swapped for a near-identical one, it is section 96A. If the description of development has to change, it is a new application, and the earlier you accept that the better.
Then check three things before you submit: whether a section 106 agreement is in place and how it is drafted, whether the permission is close to its implementation deadline, and whether the site has any conditions already discharged that will need re-approving. A short covering note that sets out the change, the reason for it and its effect on each affected condition does more for the case officer than a long Planning Statement, and on a straightforward variation it is all that is needed. For the background on how variations work generally, see our guide to varying a planning condition.
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. Section 73 only allows an authority to consider whether a condition should be imposed differently or removed, so the description on the original permission stays as it is. If the approved description says four dwellings and you now want five, a fresh full application is the only route available.
Is there a right of appeal if the council refuses a section 96A application?
There is no appeal against a decision that a proposed amendment is not non-material. The fee is lost and the applicant has to choose between submitting a section 73 application, if a condition is involved, or a new planning application. That lack of an appeal route is the main argument for checking with the case officer first.
Does the section 106 agreement carry over to a section 73 permission?
Only if it is drafted to bind permissions granted under section 73 in respect of the development. Many modern agreements say exactly that. Older ones frequently do not, and a supplemental deed or deed of variation is then needed before the new permission can be issued, which usually takes longer than the application itself.
Can section 73 be used to extend the life of a permission?
No. Section 73(5) expressly prevents an authority from varying a condition so as to extend the time limit for implementation. If a permission is approaching expiry the options are to implement it lawfully by carrying out a material operation on site, or to apply for a fresh permission before it lapses.
How long does a section 96A application take?
The statutory determination period is 28 days from validation, which is why agents reach for it under time pressure. Publicity is not required, although some authorities notify neighbours anyway. Authorities apply the non-material test cautiously, so borderline changes are often returned with a request to submit under section 73 instead.
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.