Using a drafted statement for a section 73 application

A section 73 application asks for permission to carry out development without complying with a condition attached to an earlier permission. That is all it asks. The council may only consider the question of the conditions, so a drafted statement that opens with a page of general policy support for the development is answering a question nobody put. The development has already been found acceptable. What is in issue is one condition, or a small set of them, and whether the planning merits of changing them stack up.

Get that framing right and a section 73 application drafted statement becomes a short, precise document. Get it wrong and you produce something that reads like a fresh planning statement, invites the officer to reopen settled issues, and takes longer to determine than it should.

What a section 73 application can and cannot change

Section 73 of the Town and Country Planning Act 1990 allows an application for planning permission for the development of land without complying with conditions subject to which a previous permission was granted. Three limits follow, and all three are routinely missed.

The description of development cannot change. The Court of Appeal in Finney v Welsh Ministers confirmed that a section 73 permission cannot be granted where the variation would conflict with the description of development in the original permission. A permission for "two wind turbines with a tip height of 100 metres" cannot be varied under section 73 to allow 125 metres, because the description itself states the height.

The time limit for implementation cannot be extended. Section 73(5) rules that out expressly, so a permission running out of time needs a fresh application rather than a variation.

And section 73 cannot be used once the permission has expired. There is no longer a condition to vary, because there is no longer a live permission.

Beyond those limits the scope is wide. Conditions on materials, layout, floor levels, landscaping, hours, phasing, approved drawings and occupancy can all be varied, and a variation to the approved drawings condition is how most minor material amendments are handled in practice.

Identifying the condition precisely

This is mechanical work and it is where drafted text goes wrong most often.

Quote the permission reference, the decision date and the full description of development exactly as the decision notice has them. Then quote the condition by number and reproduce its wording verbatim, including the reason given beneath it. Then set out the proposed replacement wording in full.

Four practical points:

1. Condition numbering changes between the officer's report, the committee resolution and the decision notice. Work from the decision notice only.
2. If the permission has already been varied once, the live permission is the most recent section 73 consent, not the original. Vary the condition as it appears on that one.
3. Where the drawings condition is the target, list the drawing numbers and revisions being removed and the ones being substituted. A council cannot grant a variation against "as amended".
4. Check whether the condition you want to change is pre-commencement and whether it has already been discharged. Varying a discharged condition needs the discharge to be revisited too.

An AI-assisted draft will structure this section correctly and will not know your decision notice. PlanScope inserts a "TO BE CONFIRMED" flag wherever a site-specific fact is missing rather than inventing one, which is the behaviour you want, and those flags are the first thing to resolve. The common reasons applications are rejected at the validation stage, set out in why planning applications are returned as invalid, include exactly this kind of reference error.

The planning history a draft will not know

Section 73 is an argument about history, and history is the one thing a generated draft has no access to.

Before writing, assemble the original officer's report or delegated report, the committee minutes where the decision went to committee, any appeal decision in the chain, the section 106 agreement and its triggers, the discharge of conditions applications already determined, and any enforcement correspondence. The reason for the condition is usually recorded in the officer's report in more useful terms than the one-line reason on the decision notice.

That matters because the officer determining your section 73 application will go back to the same documents. If the condition was imposed to address a specific consultee objection, the consultee will be reconsulted, and your statement needs to have answered them already.

Where the permission carries a section 106 agreement, check whether the obligations are tied to the original permission by reference. A new permission created by section 73 can sit outside the agreement unless a deed of variation brings it in, and councils will usually require one before issuing. That is a programme item, not a formality.

Explaining why the condition should change

The merits section is short and it has one job: to show that the planning purpose served by the condition is either no longer necessary or is met another way.

Three lines of argument carry weight. The circumstances have changed, with evidence, such as a revised technical standard, an updated survey, or a utility requirement that was unknown at the time. The condition was drawn more tightly than its stated purpose required, and a looser version achieves the same result. Or the development has been designed out of the problem, so the condition addresses a risk the amended scheme no longer creates.

What does not carry weight is cost to the applicant on its own, or a simple preference for a different arrangement. National guidance on the use of planning conditions sets out the six tests, including necessity and reasonableness, and the same tests apply to the replacement condition you are proposing.

Address the planning balance only to the extent the variation affects it. Where the variation changes the appearance of the building, a short design assessment belongs in your Planning Statement and the statement should say plainly that no other aspect of the approved scheme is altered.

Dealing with the original reason for the condition

Take the stated reason and answer it on its own terms.

A condition requiring natural slate "to protect the character of the conservation area" is answered by showing that the substitute material reads the same at the viewing distances that matter, with a sample panel offered by condition. A condition restricting hours "in the interests of residential amenity" is answered with an acoustic position, not with an assertion that the neighbours will not mind. A condition requiring a tree protection scheme "to safeguard retained trees" is answered by an arboricultural note confirming the revised layout keeps the root protection areas intact.

Where the reason has simply fallen away, say so and prove it. A condition requiring details of a boundary treatment with a site that has since been developed and the boundary built is a clean example.

Re-imposing conditions on the new permission

A successful section 73 application produces a new, free-standing planning permission. The original permission remains extant, which occasionally matters, and the new one needs a full set of conditions of its own. The mechanics are set out in section 73 variations and the new permission they create.

The Supreme Court in Lambeth London Borough Council v Secretary of State dealt with what happens when a council forgets to carry conditions across, holding that the permission should be read as a reasonable reader would understand it in context. Relying on that is not a plan. Attach a schedule to your application listing every condition on the live permission, with the condition you are varying shown in its new form, those already discharged marked as such, and the remainder proposed for re-imposition.

Councils appreciate the schedule because it saves them assembling it. Applicants benefit because it prevents a pre-commencement condition reappearing in a form that requires work already done to be redone.

Check the Community Infrastructure Levy position as well. The levy regulations contain specific provision for permissions granted under section 73, and a variation can change the chargeable amount, particularly where floorspace moves between uses. A new assumption of liability notice and commencement notice will usually be needed against the new permission.

Where a fresh application is the better route

Four situations point away from section 73.

The description of development needs to change, which Finney rules out. The permission has lapsed or is about to. The amendment is so extensive that the council will treat it as a different development, in which case the officer may simply refuse to accept the application. Or the change is trivial, in which case section 96A non-material amendments is faster and cheaper, though a section 96A amendment cannot be used to vary a condition in a way that amounts to a material change.

The Levelling-up and Regeneration Act 2023 inserted a further route into the 1990 Act for applications to alter an existing permission where the result would not be substantially different. Commencement arrangements and the application procedure for that route should be checked on gov.uk before relying on it, since the provision was not brought into force at the same time as the Act.

Work through the condition schedule and the planning history before you choose the route. The checklist in section 73 application: the checklist before you submit covers the validation requirements, and the route decision is cheaper to get right on day one than to unpick after a refusal.

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

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