Section 73 refusals and the limits of varying conditions

A section 73 application can vary or remove a condition attached to a planning permission. It cannot change the description of development on the decision notice, and that single limit explains most of the refusals. If the change you want would make the permission grant something other than what was described, the authority has no power to allow it under section 73 of the Town and Country Planning Act 1990, and a section 73 refusal on that ground is not a judgement about the merits of your scheme at all.

Knowing which of the three routes applies before you submit saves a wasted fee and eight weeks.

What section 73 can and cannot change

Section 73 allows an application for planning permission for the development of land without complying with conditions subject to which a previous permission was granted. The authority considers only the question of the conditions. If it decides the conditions should be varied or removed, it grants a new planning permission subject to different conditions. The original permission survives, which is why practitioners talk about a permission and its section 73 siblings sitting side by side.

What it cannot do is touch the operative part of the permission. In Finney v Welsh Ministers the Court of Appeal held that a section 73 permission cannot alter the description of development in the original grant, so an application that needed the description changed to work was outside the power. That case is read narrowly by some authorities and broadly by others, and the practical result is that the wording on your original decision notice now matters more than it did when it was issued.

Two consequences follow. Keep descriptions of development short and general when you first apply. And read the description before you assume a variation is available.

Why the description of development constrains everything

A permission described as "erection of 24 dwellings" leaves room for a changed mix, because the number is the only fixed term. A permission described as "erection of 24 dwellings comprising 12 two bedroom and 12 three bedroom houses in accordance with the approved drawings" has written the mix into the grant, and changing it through a variation of the approved drawings condition risks a refusal on Finney grounds.

Where the description refers to approved plans, the plans condition is a condition and can be varied. Where the description itself contains the detail, it cannot. Officers differ on how far a drawing change can go before it becomes a change to the description, and the honest answer is that there is no bright line. Ask the case officer in writing before submitting anything marginal, and keep the reply.

Refusals based on a fundamental alteration

The second family of refusals is substantive. The authority accepts it has power to entertain the application, considers the varied condition and concludes that the development as varied is unacceptable. Common examples include a variation that increases the ridge height enough to change the daylight position for a neighbour, the removal of a condition restricting hours of operation where noise evidence no longer supports it, and the deletion of an affordable housing trigger where viability has not been re-tested.

A section 73 decision is a fresh grant, so the authority applies the policy in force at the date of its decision, not the policy in force when the original permission was issued. That catches schemes permitted before a new local plan, a new biodiversity requirement or a revised national policy. It is the reason a variation on an old consent occasionally attracts requirements the original never carried, and why a Planning Statement supporting a section 73 application has to address the current policy position rather than rely on the earlier decision.

Conditions on the new permission can be re-imposed, reworded or added, within the limits of the six tests in national policy. The authority cannot use the opportunity to impose a condition that has nothing to do with the development.

Section 96A for small changes

Section 96A allows a non-material amendment. There is no statutory definition of non-material, and the authority decides the question against the permission as a whole. A window swapped for a door on a rear elevation, a small change to a material specification, the correction of a drawing number: these are the normal diet.

The advantages are speed and cost. The determination period is 28 days, the fee is far lower than a full application, and the decision amends the existing permission rather than creating a new one, which keeps the original start date and any lawful start intact. That last point matters where the original permission is close to expiry.

The limits are real. A non-material amendment cannot extend the time limit for implementation, cannot alter the description of development, and cannot be used where the cumulative effect of successive amendments would be material. Authorities keep a record of previous section 96A decisions on a permission for exactly that reason.

When a fresh application is the honest answer

If the change alters what is being built in a way a reasonable objector would notice, submit a new full or householder application. It costs a full fee and the normal determination period, and it produces a clean permission with an unambiguous description.

Three situations point that way. The description of development has to change. The scheme has grown beyond what the original red line covers. Or the original permission is old enough that the evidence base, particularly ecology and drainage, would have to be redone anyway. Councils sometimes suggest a fresh application in a pre-application response, and taking that advice is usually faster than arguing the point through a refusal and an appeal. Where the change is being driven by a condition you never wanted, read the related guidance on conditions imposed by an inspector after an appeal is allowed before you apply.

Conditions on a section 73 grant

When a section 73 permission is issued, all the conditions have to be restated. Check the new decision notice line by line against the old one. Two errors are common: a condition that was discharged on the original permission reappears undischarged on the new one, and a condition requiring approval before work starts is re-imposed in a form that catches works already lawfully carried out.

Neither is fatal. Both need dealing with promptly, either by asking the authority to correct the notice or by applying to discharge the repeated condition with a covering note attaching the earlier approval. Leaving it produces an enforcement question years later when the site is sold and a solicitor reads the file.

Appealing a section 73 refusal

The appeal is made under section 78 to the Planning Inspectorate, with six months from the date of the decision notice for most applications. Where the authority refused on the Finney point, the appeal turns on a question of law about the scope of the power, and an inspector who agrees with the council will dismiss the appeal without reaching the merits.

Where the refusal is substantive, the appeal runs like any other, and the choice between written representations, a hearing and an inquiry follows the usual considerations set out in choosing between written reps, a hearing or an inquiry. Non-determination is also appealable, and the trade-offs there are covered in the guidance on appealing against non-determination.

The Levelling-up and Regeneration Act 2023 provides for a further route to vary permissions, section 73B of the 1990 Act. As at September 2026, check on legislation.gov.uk whether that section has been brought into force before relying on it, because provisions in the Act have been switched on in stages.

Illustrative example: a developer with permission for "change of use to a restaurant" wants to open until midnight rather than 11pm. That is a condition, so section 73 is the route, and the application stands or falls on updated noise evidence. The same developer wanting to add a first floor to the same building is changing what was described, so a fresh application is the route.

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 position with your local planning authority or a qualified professional before relying on it.