Varying trading hours under a section 73 application

If your permission carries a condition restricting opening hours and you want to trade later, the route is an application under section 73 of the Town and Country Planning Act 1990. It is an application to carry out the development without complying with a condition previously imposed, and if it succeeds the council grants a new permission with the condition altered or removed.

That is a different thing from a new planning permission for the use, and it is a different thing again from a variation of your premises licence. All three get confused, and applicants sometimes spend money on the wrong one.

Reading the condition you want changed

Start with the decision notice rather than with what everyone believes the position to be. Conditions are often more specific, or less restrictive, than the operator remembers.

Note the condition number, the exact wording, and the reason given for it. The reason matters, because a condition imposed to protect residential amenity from noise is answered with acoustic and management evidence, while one imposed for highway reasons is answered with evidence about traffic and parking at the proposed hours.

Check whether the hours appear anywhere else. Sometimes they sit in the description of development rather than in a condition, and occasionally they appear in a section 106 obligation. Where the restriction is in the description, section 73 cannot help, because the courts have held that a section 73 application cannot be used to vary a condition in a way that conflicts with the operative part of the permission. That leaves a fresh application for the use with the hours you want.

Where the restriction sits in a section 106 obligation, the route is a deed of variation or, after the relevant period has elapsed, an application to modify or discharge the obligation.

Why section 73 rather than a new application

Section 73 is narrower and usually faster. The council considers the question of the condition, not the acceptability of the development as a whole, which means the principle of the use is not reopened.

Two limitations to know. Section 73 cannot be used to extend the time limit for implementing a permission. And the resulting permission is a new permission that stands alongside the original, so you end up holding both, and the development has to be carried out under one or the other rather than a mixture of the two.

There is also a non-material amendment route under section 96A, which is quicker still and does not involve publicity. It is suitable only for changes that are non-material in substance, and a change to trading hours affecting neighbours will rarely qualify. The Levelling-up and Regeneration Act 2023 inserted a further route for applications that are not substantially different from the existing permission, so check whether that provision is in force and what the council's practice is before choosing.

Fees for section 73 applications are set nationally and are indexed, so check the current fee schedule rather than relying on a figure from a previous application.

Evidence that supports longer hours

The application will be judged on effect, so build the evidence around the effect at the nearest sensitive properties at the hours proposed.

For a food, drink or leisure use, that normally means:

• An acoustic assessment addressing plant, customers and servicing at the proposed hours, with background sound levels measured at the relevant times rather than extrapolated from daytime data. A noise impact assessment built on a night-time survey is far more persuasive than one that assumes a night-time background.
• A management plan covering dispersal, external areas, smoking, door supervision, deliveries and waste collection times.
• Transport and parking evidence where later trading changes movements, which for a larger proposal means a transport statement covering the additional hours.
• Where cooking is involved, confirmation that the extraction system is adequate for the extended hours, supported by a ventilation and extraction statement if the system is being changed.

Be specific about what is actually proposed. An application to extend closing from 23:00 to 23:30 on Fridays and Saturdays is a much easier case than a blanket request to midnight seven days a week, and it is often all the business needs.

Complaint history and how it is used

Environmental health will be consulted, and they will check their records. A clean complaint history over several years is the single most useful piece of evidence an operator can have, and it costs nothing to accumulate.

Where complaints exist, address them directly. Set out what was complained about, when, what was done in response, and what has happened since. An application that presents its own complaint history and explains the remedial action reads as a business that manages itself. One that stays silent while the environmental health response lists five complaints reads very differently.

Keep your own log. Councils record complaints made to them, but not the ones made to you and resolved at the door, and your record of those is useful evidence of active management.

Trial periods and temporary variations

Where a council is doubtful, a temporary permission is often available and is worth proposing yourself. A condition permitting the extended hours for a fixed period, with a requirement to submit a monitoring report, gives the authority a way to say yes without committing permanently.

Design the trial so it produces usable evidence. Agree what will be monitored, keep the complaint log, record the management measures in operation, and note any incidents and the response. When the trial ends, the application to make the hours permanent is supported by operating data rather than predictions.

One caution. A temporary permission that expires unnoticed leaves the business trading in breach, so diarise the expiry date and start the follow-up application well before it.

The new permission and what it replaces

A grant under section 73 produces a new permission for the same development, subject to the varied condition. The council will normally restate the other conditions on the new decision notice, and it is entitled to reconsider them, which is the risk in using the procedure. A condition that has become inconvenient elsewhere may be reworded in the process.

Check the new notice carefully against the original. Confirm that the conditions you rely on are carried across in the same terms, that nothing new has been added that you cannot comply with, and that any condition already discharged under the original permission is either treated as discharged or dealt with promptly under the new one.

Community Infrastructure Levy liability can also be affected where the section 73 permission relates to chargeable development, so raise that with the charging authority rather than discovering it later.

Licensing running alongside planning

Planning and licensing are separate regimes with separate applications, separate committees and separate tests. The Licensing Act 2003 works to its own objectives, including the prevention of public nuisance, while planning works to the development plan and material considerations.

The practical rule is that the more restrictive of the two governs. A premises licence permitting sales until 01:00 does not override a planning condition requiring closure at 23:00, and trading to the licensed hours in breach of the planning condition is a breach of planning control that can be enforced against.

Run both applications in parallel where both need changing, and use the same evidence base for each. The acoustic report, the management plan and the complaint history all serve both, and a consistent case across the two regimes is harder to argue against than two documents that describe the operation differently.

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

PlanScope drafts the supporting documents for a section 73 application, structured to UK planning policy and flagged where site evidence is needed. Acoustic work should be prepared or reviewed by a suitably qualified professional. Enter your postcode to see which reports your site needs. Reports should be reviewed before submission, and we do not guarantee planning approval.