Varying a planning condition by agreement, not application

You cannot vary a condition without an application. A planning condition forms part of the grant of permission, and the only ways to change one are a section 73 application, a section 96A non-material amendment where the change really is non-material, or a fresh application for the whole development. An officer's email saying a condition "is no longer relevant" changes nothing in law. It may tell you how the authority is likely to exercise its enforcement discretion this month, which is useful, and worth keeping on the file. It is not a consent.

That distinction matters most when a client has already acted on the email.

Why a condition cannot be waived informally

A condition is imposed under section 70(1)(a) of the Town and Country Planning Act 1990 as part of the decision on an application. The permission runs with the land, so a purchaser three owners later inherits every condition exactly as written on the decision notice. Nothing in the Act gives a case officer power to dispense with one.

Authorities decide applications through a scheme of delegation. A delegated officer decision is still a decision on an application, with a fee, a validation step and an entry on the planning register. Correspondence has none of those features, and a later officer reading the file has no obligation to agree with an earlier one.

There is also the register problem. The decision notice is the public record, and a condition that has been informally set aside still appears on it. That becomes the buyer's solicitor's problem, then yours.

Correspondence that is not a consent

Pre-application letters, emails, site-visit notes, committee minutes and telephone records all sit in the same category. They evidence a view. They do not alter the permission.

Legitimate expectation is sometimes raised at this point. It is a narrow public-law doctrine, it needs a clear and unambiguous representation made to the person relying on it, and it rarely rescues a developer who has carried out works in breach. Treat it as a long-stop argument rather than a plan.

Officer correspondence does have two practical uses. It bears on whether enforcement action would be expedient, which is the authority's own test before it serves a notice. And it can matter on costs if the authority later takes an unreasonable position at appeal. Pulling that material together early is worth the effort, and the same discipline that gets you the officer's case file and consultee responses is what produces a usable record here.

The formal routes available

Section 73 has a boundary worth remembering. In Finney v Welsh Ministers the Court of Appeal held in 2019 that section 73 cannot be used to vary a condition in a way that conflicts with the description of the development permitted. If the condition and the description pull against each other, you are into a fresh application.

The Levelling-up and Regeneration Act 2023 inserted a further route, section 73B, for variations whose effect is not substantially different from the existing permission. Check its commencement position before you advise on it, because the provisions in that Act have been brought into force in tranches.

A section 73 application is a full planning decision in miniature, so it needs the policy case put properly. A short Planning Statement that explains why the condition is no longer necessary, against the six tests, does more work than a covering letter.

Conditions discharged by effluxion of time

Some conditions do stop biting. A pre-commencement condition requiring details to be submitted and approved is spent once the approval is issued. A condition granting a temporary permission expires on its own terms. A condition requiring works within a fixed period after first occupation is different: the obligation is breached when the period passes, not extinguished.

Breach and immunity are separate ideas. Under section 171B(3) of the 1990 Act, a continuing breach of condition becomes immune from enforcement after ten years of continuous breach. Section 115 of the Levelling-up and Regeneration Act 2023 replaced the four-year limits in England with ten years, and that change applies only to breaches from its commencement date, so establish which regime catches your client's facts before you reach a view.

Immunity is not the same as lawfulness on paper. A certificate of lawfulness of existing use or development under section 191 is the formal way to record it.

Conditions that are unenforceable

Planning Practice Guidance sets six tests: necessary, relevant to planning, relevant to the development permitted, enforceable, precise, and reasonable in all other respects. A condition that fails the precision test can be void for uncertainty, though authorities and inspectors read conditions sympathetically before reaching that conclusion.

Unenforceability is a defence, not a licence. If a condition is bad, the routes are an appeal against its imposition, a section 73 application, or an argument run in response to enforcement. Ignoring it quietly leaves your client holding the risk while the authority holds the initiative.

Watch for conditions requiring works on land the applicant does not control. A negative condition preventing development until something happens elsewhere, the Grampian form, is usually valid. A positive condition requiring the applicant to do something on a third party's land usually is not.

Recording an authority's position safely

Where the client will not pay for a formal application, there is still a sequence that protects everyone.

1. Write to the case officer quoting the application reference and the condition number, and set out precisely what you understand the authority's position to be.
2. Ask whether the authority will confirm it in writing, and whether the confirmation is given on behalf of the authority or as a personal view.
3. Record the officer's name, role and date, and diary a review for any change of officer or of administration.
4. Price the formal route anyway. A section 96A fee is small against the cost of a stalled sale, and there are fee exemptions and reductions worth claiming that clients rarely know about.
5. Where the point at issue is whether something is already lawful, apply for a certificate rather than seeking reassurance.

Advising a client who has an email

Start with the exposure. A breach of condition notice under section 187A carries no appeal to the Planning Inspectorate, which removes the comfort most clients assume they have. An enforcement notice, an injunction under section 187B or prosecution are all available to the authority, and none of them is answered by producing an officer's message from two years earlier.

Then the commercial exposure. Commercial property enquiries and local searches will surface the condition, a lender's solicitor will ask for evidence of compliance or a formal variation, and the usual outcome is a retention or a price reduction. Obligations in a section 106 agreement behave the same way and need their own instrument, which is why varying a section 106 agreement after permission is a separate exercise from varying a condition.

Tell the client plainly that the email is evidence of goodwill and nothing more. Then price the application.

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

If you need the policy case for a section 73 drafted quickly, enter the site postcode on PlanScope to see which supporting documents the proposal is likely to need. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.