Section 73 variation of planning conditions

A section 73 variation of conditions application asks the local planning authority for permission to carry out development without complying with a condition attached to an earlier permission. Section 73 of the Town and Country Planning Act 1990 allows the authority to grant that permission subject to different conditions, or without the condition at all, or to refuse it if the condition should stand. What it produces is a new planning permission sitting alongside the original one, and that single fact drives most of the complications.

Architects reach for section 73 because it looks like an amendment route. It is closer to a fresh permission with a shortcut on the parts that are not changing.

What it allows, and what it does not

Section 73 deals with conditions. It can remove a condition, replace it with different wording, or substitute approved drawings where the drawings are tied to the permission by condition, which is how most design changes are handled.

What it cannot do:

• Extend the time limit for implementation. Section 73 expressly excludes varying a condition so as to extend the period within which development must begin, or within which reserved matters approval must be sought.
• Be entertained at all once the time limit has expired and the development has not begun. At that point the permission is spent and a fresh application is the only route.
• Change the description of the development. Where the proposed variation conflicts with the operative description in the permission, section 73 is not available, which the Court of Appeal confirmed in Finney v Welsh Ministers in 2019.
• Alter anything that was not imposed as a condition. A change to the operative part of the permission itself is outside its scope.

The Finney point is the one that catches schemes out. Where the description reads "erection of 24 dwellings", a variation to 26 cannot proceed under section 73 however minor it seems. Where the description reads "residential development" and the numbers sit in a condition, the same change is straightforward. Descriptions written tightly at the original application stage limit flexibility for years afterwards.

The Levelling-up and Regeneration Act 2023 introduced a further route, section 73B, for varying permissions where the effect is not substantially different from the original. Check whether that provision is in force before relying on it, because provisions in that Act have been brought into force in stages.

Why it creates a new permission

A grant under section 73 is a new permission for the development, subject to the conditions as varied. The original permission remains extant and can still be implemented on its own terms.

Three consequences that matter in practice.

The new permission must carry forward every condition from the original that is still needed. Where an authority issues a section 73 permission listing only the varied condition, the rest are not carried over, and the developer ends up with a permission missing its drainage, landscaping and materials controls. Check the decision notice against the original condition schedule and ask for a correction if conditions have been dropped.

Conditions already discharged under the original permission do not carry their discharge across automatically. Where a condition precedent was satisfied under the first permission and reappears in the second, ask for it to be worded to acknowledge the earlier approval, or be prepared to submit again.

And implementation has to be under one permission or the other, consistently. Building partly to the original and partly to the variation produces a development authorised by neither, which is the trap the Pilkington principle describes, and our note on inconsistent permissions and the Pilkington principle sets out how that arises.

Time limits on the new permission

The new permission takes the time limit of the original. If the original had to be begun within three years of a date in 2024, the section 73 permission inherits that deadline rather than starting a fresh three years.

That is why section 73 cannot rescue a permission running out of time. Where the deadline is the problem, the options are a material start under the original permission before it lapses, or a fresh application.

A material start under the original permission keeps it alive, and a later section 73 on that permission is then possible, which is a common sequence on sites where the design is still moving. The start has to be genuine, and where a condition precedent has not been discharged the start may not be lawful at all, a point covered in our note on conditions precedent and the Whitley principle.

Community Infrastructure Levy consequences

A section 73 permission is a new permission, so the levy is looked at again.

The regulations provide for the chargeable amount on the new permission to be calculated and for the earlier liability to be taken into account, so the outcome should not be double payment. What changes, and what to check before applying:

The exemption point is where real money is lost. A self-builder who obtained an exemption on the original permission, then varies a condition and starts work without re-claiming, can lose the exemption entirely. Deal with it before any work begins, and check the current regulations and the charging authority's published approach, since both change.

Fees and determination periods

A section 73 application carries a fee, set at a flat rate that is considerably lower than a full application for the same development, with a reduced rate for permissions relating to a house. Fees are indexed annually, so check the current schedule rather than a figure from a previous job.

Determination is normally eight weeks, or thirteen where the development is major. Publicity requirements apply as they would for a fresh application, which means neighbour notification and a site notice where required, and objections can be made afresh.

What to submit:

1. The application form identifying the permission and the precise condition to be varied.
2. The existing condition wording and the proposed wording, side by side.
3. The reason for the variation, set against what has changed since the original approval.
4. Drawings showing the change, with the superseded drawing numbers listed.
5. Any updated technical evidence the change affects, such as a revised drainage calculation or a revised parking layout.
6. A short Planning Statement addressing the policy position as it stands now, not as it stood when the original permission was granted.

Point six matters more than applicants expect. The authority assesses the variation against the current development plan, so a policy adopted since the original grant applies. On a scheme approved before a new biodiversity or carbon policy took effect, that can turn a simple variation into a substantive negotiation.

Choosing between section 73, section 96A and a fresh application

Three routes, and picking the wrong one costs months.

Section 96A handles non-material amendments only. It amends the existing permission rather than creating a new one, has a short determination period, involves no publicity and carries a low fee. It is right for trivial changes such as a window position or a corrected drawing reference. The test is whether the change is non-material, judged by the authority.

Section 73 handles changes that are material but still within the description of development, and where the mechanism is a condition. It is the standard route for design amendments during construction.

A fresh application is needed where the description would change, where the time limit has expired, or where the change is large enough that the authority would prefer to reassess the scheme as a whole. It costs more and takes longer, and it produces a clean permission with a fresh time limit, which on a long-running site is sometimes worth having.

Our checklist on what to settle before submitting a section 73 application covers the practical preparation, and our note on varying a planning condition under section 73 works through the procedure.

This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.