Varying a planning condition imposed by an inspector

A condition imposed by a planning inspector is varied in exactly the same way as a condition imposed by a council: by a section 73 application to the local planning authority. The inspector has no continuing role. Their decision on the appeal is final, but the permission that decision granted is a planning permission like any other, and section 73 of the Town and Country Planning Act 1990 lets you apply for permission for the same development without complying with one or more of its conditions.

That surprises developers who assume the authority cannot touch what an inspector decided. It can, and sometimes it will.

Who has the power to vary an appeal condition

Section 73 gives the power to the authority that would have determined the original application, so the application goes to the council even where the permission was granted by the Planning Inspectorate on appeal. You describe the development as it was described in the appeal decision, identify the condition or conditions you want changed, and set out the substitute wording.

The authority then decides whether permission should be granted subject to different conditions, or without the condition altogether, or whether it should be refused. If it grants, the result is a new, free-standing planning permission. The appeal permission survives alongside it.

There is a practical awkwardness here that nobody enjoys. An officer who recommended refusal, was overruled on appeal, and is now asked to relax a condition the inspector imposed, is being asked to revisit ground the council lost on. Expect the covering submission to carry more weight than usual.

What the authority can and cannot reconsider

The scope of a section 73 application is the condition, not the development. The authority considers whether the condition should be imposed differently, judged against the development plan and the material considerations as they stand now. It does not reopen whether the development should have been permitted at all.

Two limits are worth stating plainly.

The first comes from section 73 itself: the power cannot be used to extend the time within which development must be begun. If the appeal permission has a three year implementation condition, section 73 will not buy you a fourth year. The only routes then are a fresh application or implementation.

The second comes from the courts. The Court of Appeal in Finney v Welsh Ministers held that section 73 cannot be used to produce a permission that conflicts with the description of the development in the operative part of the original permission. So you cannot use it to turn a permission for 40 dwellings into a permission for 48 by rewording a condition, and you cannot use it to change the description itself.

Conditions the authority will not relax

Some conditions on appeal permissions are there because the inspector regarded them as the reason the scheme was acceptable. Those are the hard ones.

Where a decision letter says the development is acceptable only because of a restriction, an authority will read that as the inspector's judgement on the planning balance and will be reluctant to depart from it without new evidence. Conditions on hours of use, on the retention of landscaping, on occupancy, and on the removal of permitted development rights fall into this group more often than not.

The way round it is evidence, not argument. If a noise condition set a plant limit the equipment cannot meet, provide the acoustic assessment showing what the revised limit would mean at the nearest facade. If a landscaping condition requires a species that the site cannot support, provide the arboricultural or ecological reasoning. Inspectors' conclusions are a material consideration and they carry weight, as our note on using appeal decisions in a planning application sets out, but they are not a bar to a different conclusion on better information.

Restating conditions on the new permission

This is the error that causes real problems years later. The permission granted under section 73 is a new permission, and the conditions on it are the conditions written on it. Conditions from the earlier permission do not travel across automatically.

So if the authority grants a section 73 permission that deals only with condition 6 and omits conditions 1 to 5 and 7 to 20, you have a permission with almost no conditions attached. That sounds attractive and is not, because the authority will usually notice and because the obligations you have already discharged may need discharging again against the new reference.

Ask for the decision to restate every condition, with the varied one in its new form, and check the issued notice against the original. Keep a schedule showing, for each condition, the original number, the new number and whether it has been discharged. A short Planning Statement accompanying the application is the right place to set that mapping out.

Section 73B and the newer route

The Levelling-up and Regeneration Act 2023 inserted section 73B into the 1990 Act, providing for permission to be granted for development that is not substantially different from that already permitted. It was designed to deal with the gap that Finney exposed, where a change is modest in substance but touches the description of development.

The 2023 Act provisions have been brought into force in stages, so check whether section 73B is available for your application before you plan around it. Where it is, it may be the better route for a change that section 73 cannot reach and that does not justify a fresh application.

Appealing a refusal of the variation

A refusal of a section 73 application carries the ordinary right of appeal to the Secretary of State under section 78. It is a new appeal, with a new inspector, and the earlier appeal decision goes into the bundle as part of the planning history rather than as a binding determination.

The six month deadline applies from the date of the decision notice, or twelve weeks for a householder appeal. Where the council has refused because it regards the condition as fundamental, the appeal turns on the planning merits of the condition and on whether the earlier inspector's reasoning still holds. Where members refused against officer advice, the position is the one described in our note on committee refusals against officer advice.

Non-determination is also a route, though a slow one. Section 73 applications are minor applications for determination period purposes in most cases, so the clock is eight weeks unless an extension is agreed.

Keeping the record straight

Two permissions for the same site, with overlapping but not identical conditions, is a conveyancing problem waiting to happen.

1. Decide which permission is being implemented and record that decision in writing.
2. Build a single conditions schedule covering both permissions, with the discharge status of each.
3. Reference the correct permission number on every subsequent discharge submission, building regulations application and sale pack.
4. Where a section 106 obligation attaches to the earlier permission, check whether it needs a deed of variation to bind the new one. It usually does.

That last point is the one most often missed. An obligation drafted to attach to a specific permission does not automatically apply to a section 73 permission, and a scheme built under the new permission without a varied obligation is a scheme with no affordable housing commitment and a council with a problem.

This is general guidance rather than legal advice, so take advice on the particular permission and its conditions before applying. To see which supporting documents your application is likely to need, browse the report types by category. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.