Section 73 or section 96A: which amendment route

Section 96A amends the permission you already have. Section 73 grants a new one. That difference sounds procedural and it is the reason most amendment decisions go wrong, because a section 73 permission comes with a fresh set of conditions, a fresh community infrastructure levy calculation, and a section 106 agreement that may not follow it across. If the change is small and uncontroversial, take the non-material route. If it touches a condition that has to move, take section 73 with your eyes open.

What each section actually does

Section 96A of the Town and Country Planning Act 1990 lets a local planning authority make a change to an existing planning permission where the change is non-material. The original permission survives, amended. The power includes imposing new conditions, and removing or altering existing ones, as part of the amendment.

Section 73 works differently. It is an application for planning permission for the development of land without complying with conditions previously attached. The authority considers only the question of the conditions. If it grants, the result is a new planning permission sitting alongside the original, and the applicant may implement either.

The non-material test and who applies it

There is no statutory definition of non-material, which is deliberate. The Act requires the authority to have regard to the effect of the change, together with any previous changes made under the same section, and to decide.

That cumulative wording matters on long-running schemes. Four successive non-material amendments, each defensible alone, can add up to something the authority will not accept as the fifth. Keep a running schedule of amendments made and attach it to each new request, because an officer who has to reconstruct that history from the file will be less generous than one handed it.

What officers accept as non-material varies by authority and by scheme sensitivity. Fenestration adjustments, minor repositioning within the site, small dimensional changes, substitution of a material for a closely similar one, and correction of a drawing error are the usual territory. Anything that changes the appearance from a public viewpoint, alters the relationship with a neighbour, affects a protected asset, or engages a consultee's earlier advice is not. Ask the case officer informally before applying, since a refusal costs a fee and the calendar time anyway.

Why a section 73 creates a new permission

This is the point practitioners most often skip, and it has three consequences.

The new permission is a permission in its own right, with its own reference and its own decision notice. The original stays alive unless and until it expires or is superseded in fact by implementation of the other.

The authority must reimpose every condition it wants to keep. A section 73 decision notice that varies condition 4 and lists only condition 4 leaves the development with a single condition, because the conditions on the original permission do not carry across automatically. Check the draft decision notice before it is issued, and if conditions are missing, say so at once. This is a real and recurring source of dispute.

And the description of development cannot be changed through section 73. The authority is considering conditions, not the operative grant, so a condition cannot be varied in a way that conflicts with what the permission describes. Where the description itself is wrong, section 73 is the wrong tool.

The Levelling-up and Regeneration Act 2023 inserted a further power, section 73B, allowing permission to be granted for development already permitted where the effect is not substantially different from the existing permission. Check the commencement position and any regulations before relying on it, and state the date of your check in advice, because the position has moved more than once.

Conditions, time limits and the section 73 trap

The trap is the time limit, and it catches schemes every year.

A section 73 permission does not reset the implementation clock. The time limit condition on the new permission runs from the date of the original permission, so a variation obtained in year two of a three-year permission leaves one year to implement, not three. Where the original permission has already expired, section 73 cannot be used at all, because there is no extant permission whose conditions can be varied.

Two practical responses. Implement the original permission lawfully before applying, so that the development is under way whatever happens to the variation. Or accept that a fresh full application is the honest route, with the delay and cost that implies.

Watch pre-commencement conditions in particular. If the original permission was implemented after discharging a pre-commencement condition, and the section 73 permission carries a differently worded version of it, the discharge may not transfer.

Effect on a section 106 agreement and on CIL

A section 106 agreement attaches to the permission it was completed in respect of. Unless the deed was drafted to bind any subsequent permission for the same development, including one granted under section 73, the new permission arrives without the obligation attached.

Authorities know this and will usually require a supplemental deed or a deed of variation before issuing the section 73 permission. Build that into the programme, because engrossing a deed with multiple parties and a mortgagee's consent takes weeks rather than days. Check the wording of the original deed at the outset. Some are drafted to follow subsequent permissions and some are not, and the difference decides whether you need the lender in the room.

Community infrastructure levy liability is recalculated on a section 73 permission under the levy regulations, with credit given for the amount payable under the earlier permission. Where floorspace has increased, expect an additional charge. Where indexation has moved since the original, the arithmetic can surprise people, so run it before committing to the route. The treatment of fees for each route is covered in the note on section 73 or section 96A fees and when each applies.

Publicity and what it reopens

Section 96A requires no statutory publicity. Some authorities notify neighbours anyway as a matter of local practice, and a few consult the parish council.

Section 73 is a planning application. It is publicised, neighbours may comment, and statutory consultees may be reconsulted. The authority's consideration is limited to the conditions, so a neighbour objecting to the principle of the development is objecting to something outside the scope. But consultees whose earlier advice bore on the condition being varied will be asked again, and a highway authority that has changed its standards since the original grant may give different advice.

That is the risk to weigh. On a scheme where the local politics have shifted, reopening consultation can be more expensive than living with the condition.

Choosing the route

1. Write down exactly what needs to change, in the words that would appear on a drawing or a condition.
2. Check whether the change touches the description of development. If it does, neither section will help.
3. Assess materiality honestly, including the cumulative effect of earlier amendments.
4. Check the remaining life of the original permission and whether it has been implemented.
5. Read the section 106 agreement for wording that follows subsequent permissions.
6. Run the levy recalculation before applying.
7. Ask the case officer which route they expect, and record the answer.

Where the amendment needs supporting narrative, a short Planning Statement explaining the change and its effects reads better than a covering letter. The limits of the non-material route are set out in section 96A non-material amendments and their limits, and the consequences of the fresh grant in section 73 variations and the new permission.

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.