Section 73: varying a condition without losing the permission

A section 73 application asks the local planning authority to grant planning permission for the same development without complying with one or more conditions on an earlier permission. If it succeeds, you get a new permission. The original stays alive.

That is the single most misunderstood feature of the section, and everything else follows from it: the conditions that must be re-imposed, the recalculated levy, the section 106 agreement that no longer bites.

What section 73 can and cannot change

Conditions, and only conditions. The scope looks narrow and is in fact wide, because modern permissions tie the approved drawings in by condition. Vary the drawings condition and you can change layout, elevations, fenestration, materials, landscaping and levels.

Three things are outside it.

The time limit for implementation cannot be extended by section 73. The statute says so expressly, and an application that tries is refused.

The description of development cannot be altered. This is the Finney principle, from a 2019 Court of Appeal decision: where varying a condition would produce a permission whose operative description no longer matches what is proposed, section 73 is not available. A permission for "erection of 12 dwellings" cannot become 14 by varying a drawings condition.

And conditions that were never lawfully imposed cannot be cured by variation, though they can be challenged directly.

Why a section 73 creates a new permission

The grant under section 73 is a distinct planning permission for the same development, subject to different conditions. It has its own reference, its own decision notice and its own implementation period running from its own date.

Two consequences matter commercially.

First, the original permission survives. On a scheme where the original is nearly at the end of its three-year period, a section 73 does not reset that clock, and building out under the original may still be necessary. Practitioners sometimes implement the original first, then apply.

Second, the new permission is a clean slate for conditions. Anything not carried across is gone, which cuts both ways: an unwanted condition may drop off, and a condition you needed for the section 106 trigger may drop off too.

The Finney principle and the description of development

The practical test is simple to apply. Write out the description on the original decision notice, then read it against the amended scheme. If the description is still accurate, section 73 works. If it is not, it does not.

Some descriptions are drafted tightly, naming unit numbers, floorspace or a particular use. Others are loose: "erection of a dwelling and associated works". A loose description gives far more room, which is why experienced agents pay attention to the wording at the original application stage rather than treating it as boilerplate.

Where the description does need to change, the routes are a fresh full application or, potentially, the alternative route inserted into the 1990 Act by the Levelling-up and Regeneration Act 2023 for permissions that are not substantially different from an existing one. That provision has been brought into force in stages, so check whether it applies and what regulations sit under it before relying on it. As at the date of writing, verify the position on legislation.gov.uk rather than assuming.

Re-imposing conditions and the levy consequence

The drafting discipline on a section 73 is unglamorous and it is where cases go wrong.

1. List every condition on the original permission.
2. Mark each one as still needed, spent, or superseded.
3. Set out the conditions you propose for the new permission, in full, including the ones that are unchanged.
4. Include the varied condition in its proposed new wording, and say what has changed.
5. Ask the council to confirm the full list before the decision issues.

A decision notice that carries only the varied condition has, in effect, discharged everything else. Councils do issue those, and the applicant who spots it after the event is in a worse position than the one who never applied.

The reverse problem is a council that re-imposes a condition, already discharged before work started, under the original permission. Ask for it to be reworded or omitted, with the discharge reference quoted, before the decision issues. Arguing about it afterwards means another application.

On the levy, the section 73 permission is a chargeable development in its own right and the calculation is done again. Where rates or indexation have moved since the original consent, the figure changes even if the floorspace does not. The Community Infrastructure Levy Regulations 2010 contain the machinery for dealing with liability under an earlier permission where development has already started on site, and the arithmetic is fiddly enough on a major scheme to warrant specific advice.

Do not forget the section 106. An agreement executed in relation to the original permission binds that permission, and a new permission granted under section 73 needs a deed of variation to catch it. Councils usually spot this. Not always.

Evidence to submit

The pack is short and specific:

• The original decision notice in full, with the condition to be varied identified.
• The existing condition wording and the proposed wording side by side.
• Revised drawings, clearly marked as revisions and cross-referenced to the drawings condition.
• A covering Planning Statement explaining why the variation is acceptable, addressing the reason the condition was imposed in the first place.
• Updated technical evidence where the change touches a matter that was assessed, such as drainage, ecology, transport or daylight.

That last point is where applications stall. A council will assess the varied scheme on its merits against current policy, not against the policy in force when the original was granted, so a section 73 on a five-year-old permission can attract requirements that did not exist then. Biodiversity net gain is the obvious example.

Illustrative example: a section 73 to change the approved materials and window positions on a nine-dwelling scheme consented in 2022. Straightforward on its face. The council assesses it against the current framework, asks about the biodiversity gain condition on the new permission, and the applicant discovers that the amendment has brought a metric requirement into a scheme that was permitted before the regime applied.

Choosing between 96A, 73 and a fresh application

The temptation is always to push a change down to the cheapest route. Resist it on anything a third party might object to, because a non-material amendment granted for a material change is vulnerable, and the vulnerability surfaces at the worst moment, usually on sale. A buyer's solicitor reads the amendment against the description of development and asks whether the permission actually authorises what is on the ground. There is no tidy answer to that question if the wrong route was used.

Policy in this area continues to move, and the planning law timeline is a reasonable place to watch for the newer amendment powers coming into force. For the supporting documents themselves, PlanScope's report library covers what a varied scheme usually needs to resubmit.

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.