Section 96A amendment or a section 73 application
A non-material amendment adjusts an existing permission. A variation of conditions creates a fresh permission that may fall outside the original section 106 agreement.
Choosing between section 96A or section 73 comes down to one question: does the change need the description of development or a condition to move. A non-material amendment under section 96A of the Town and Country Planning Act 1990 corrects or adjusts an approved scheme without altering what was permitted. An application under section 73 grants a fresh planning permission on different conditions. The first is quick, low cost and narrow. The second resets a surprising amount of the legal furniture, including the section 106 agreement and the levy calculation, and agents who treat it as a paperwork exercise get caught.
Neither route touches the description of development. That is the trap in both.
What counts as non-material
There is no statutory definition. Section 96A simply allows an authority to make a change to a planning permission where it is satisfied the change is not material, and requires it to have regard to the effect of the change together with any previous changes made under the section.
That last clause matters. Three successive amendments, each defensible alone, can be refused on the fourth because the cumulative effect has become material. Keep a running note of what has been amended, and put the cumulative position in the covering letter rather than leaving the officer to assemble it.
In practice authorities accept things like small dimensional corrections that do not change the scheme's relationship with neighbours, internal layout changes with no external effect, substitution of a drawing to correct a drafting error, adding a plan reference omitted from the condition list, and modest material substitutions where the appearance is comparable. They generally refuse changes to unit numbers, changes to the external envelope visible from a public vantage point, anything that would need fresh consultation, and anything touching the description of development.
Section 96A is determined within 28 days and carries a fixed fee, lower for householder development. There is no statutory requirement to consult or publicise, though many councils notify neighbours on anything visible. There is no right of appeal against a refusal, which is the practical reason to take the officer's informal view before submitting.
What a variation application can change
A section 73 application is an application for planning permission for the development of land without complying with conditions previously imposed. The authority can only consider the conditions. The underlying principle of development is settled and cannot be reopened, and the authority either grants a new permission with different conditions or refuses.
The limit set by the Court of Appeal in Finney v Welsh Ministers is the one to know. A condition cannot be varied in a way that conflicts with the operative part of the permission, so a section 73 application cannot be used to change the description of development by the back door. Where the approved drawings condition is varied to substitute plans showing something the description does not cover, the application fails on that ground alone, however sensible the change.
Section 73B, inserted by the Levelling-up and Regeneration Act 2023, creates a separate route for minor variations that can reach the description of development. The planning provisions of that Act have been brought into force in stages, so check the current position and the associated procedure at legislation.gov.uk before relying on it.
The new permission a variation creates
This is where the money is. A section 73 grant is a new, free-standing planning permission that sits alongside the original, and the applicant may implement either.
Four consequences follow.
The new permission carries forward the original time limit for beginning development rather than starting a fresh clock, so a section 73 granted in year four of a three year consent is of limited use. Every condition from the original permission has to be re-imposed on the new one, so read the draft decision notice carefully, because conditions already discharged on the original are commonly re-imposed in full and then have to be discharged again. Conditions the authority now considers necessary can be added, which is how a scheme acquires a biodiversity gain requirement or a new drainage condition it did not have before. And the section 106 agreement attached to the original permission does not automatically bind the new one.
That last point ends schemes. An obligation is usually drafted to bind a named permission, so a new permission created under section 73 may fall outside it, and the authority will require a deed of variation or a supplemental agreement before granting. Build the legal time into the programme.
Effect on obligations and the levy
| Issue | Section 96A | Section 73 |
|---|---|---|
| Legal effect | Amends the existing permission | Creates a new permission alongside the original |
| Description of development | Cannot be changed | Cannot be changed, following Finney |
| Conditions | Can be amended where non-material | Re-imposed in full, with additions possible |
| Section 106 | Original agreement continues to apply | Usually needs a deed of variation |
| Community Infrastructure Levy | No new chargeable development | New chargeable development, recalculated |
| Time limit for starting | Unchanged | Carries the original limit forward |
| Determination period | 28 days | Eight weeks, or 13 for major development |
| Right of appeal | None | Yes, as for any refusal |
On the levy, a section 73 permission triggers a fresh calculation, and the Community Infrastructure Levy Regulations 2010 contain specific provision for permissions granted under that section. Recalculate rather than assuming the original liability carries across, and check whether any exemption or relief already claimed, such as self-build relief, survives on the new permission. Reliefs are tied to the permission they were granted against.
Affordable housing obligations deserve the same care. Where the variation changes unit numbers or mix, the original heads of terms may no longer deliver what the policy requires, which is when a viability assessment or affordable housing statement comes back into play.
Where neither route works
Some changes are simply a new application. If the proposal changes the description of development, alters the red line boundary, increases the number of units, or introduces a use the original permission did not authorise, neither section reaches it.
Two grey areas recur. A change to the red line, even a small one to pick up a visibility splay, usually needs a fresh application because both sections operate on the permission as granted for the land described. And a change to a scheme that has already been substantially completed raises the question of whether there is a permission left to vary at all, since a permission fully implemented is spent.
Where the change is to a householder scheme, the choice between a householder application and a full application may be simpler than pursuing a variation, because the fee difference is small and a fresh permission comes with a clean set of conditions.
Deciding which to use
Work through it in this order.
- Write the change as a sentence. If that sentence contradicts the description of development on the decision notice, stop: it is a new application or, where available, a section 73B route.
- Ask whether the change alters the scheme's effect on anyone outside the site. If it does, section 96A is unlikely to succeed.
- Check the time limit for beginning development. If it expires within a year, a section 73 buys you nothing, because the new permission inherits the original date.
- Check the section 106. If one exists, price and programme a deed of variation before committing to section 73.
- Check the levy position, including any relief already claimed.
- Send the officer a short note describing the change and ask which route they would accept. Both routes are discretionary in practice, and a five minute email saves a refused application with no right of appeal.
Then assemble the supporting documents. A variation on a scheme of any size will usually need updated drawings, a short planning statement explaining why the conditions should change, and whatever technical report the new condition set requires. The detail of what to submit is covered in the section 73 application checklist, and the mechanics of the resulting consent in section 73 variations and the new permission they create.
Browse all 66 PlanScope report types and start a draft if the variation needs a fresh technical document.
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.
Frequently asked questions
Is there a legal definition of non-material?
No. Section 96A of the Town and Country Planning Act 1990 allows an authority to make a change it is satisfied is not material, and requires it to have regard to the effect of that change together with any previous amendments made under the section. Cumulative effect is why a fourth amendment can be refused when three were accepted.
Can a section 73 application change the description of development?
No. Following the Court of Appeal in Finney v Welsh Ministers, a condition cannot be varied in a way that conflicts with the operative part of the permission. Section 73B, inserted by the Levelling-up and Regeneration Act 2023, creates a separate route for minor variations, and whether it is in force should be checked at legislation.gov.uk.
Does a section 73 permission reset the time limit for starting?
It does not. The new permission carries forward the original time limit for beginning development, so a variation granted late in the life of a consent buys no additional time. Where the deadline is close, the better route is usually to implement the original permission first and vary afterwards, subject to advice.
What happens to the section 106 agreement on a variation?
An obligation is normally drafted to bind a named permission, so the new permission created under section 73 may fall outside it. Authorities generally require a deed of variation or a supplemental agreement before granting. Programme and price the legal work at the outset rather than discovering it at committee stage.
Does the Community Infrastructure Levy have to be recalculated?
Yes. A section 73 grant is a new chargeable development and the Community Infrastructure Levy Regulations 2010 contain specific provision for permissions granted under that section. Check also whether any relief already claimed, such as self-build relief, survives, because reliefs attach to the permission they were granted against.
Can I appeal a refused non-material amendment?
There is no right of appeal against refusal of a section 96A application. That is the practical reason to describe the change to the case officer informally and take their view before submitting. A refusal under section 73 can be appealed in the ordinary way, as can a refusal of a fresh application.
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.