Securing planning permission is an important step in any development project, but circumstances can change between approval and implementation. A developer may discover that an existing condition is unnecessarily restrictive, a particular design requirement is no longer practical, or a condition needs to be amended to reflect new technical information.
Rather than submitting an entirely new planning application, it may be possible to use a Section 73 planning application to vary or remove specific conditions attached to an existing permission.
Section 73 of the Town and Country Planning Act 1990 provides a legal route for seeking permission to carry out development without complying with one or more conditions attached to an earlier planning approval. It can offer flexibility where a development needs to adapt, while preserving the underlying principle of the original permission.
However, Section 73 is not a general mechanism for changing every aspect of an approved development. There are important legal limitations on what it can achieve, and understanding these restrictions is essential before making an application.
What Is a Section 73 Planning Application?
A Section 73 planning application is an application to develop land without complying with conditions attached to a previous planning permission.
Under Section 73 of the Town and Country Planning Act 1990, a local planning authority considers what conditions should apply to the development under the new application. It may grant permission with different conditions, grant permission without the relevant conditions or refuse the application if it considers that the original conditions should remain.
The process is commonly used where a developer wants to:
- Remove a condition that is no longer necessary.
- Amend the wording of an existing planning condition.
- Change approved details controlled by a condition.
- Make a material amendment to a scheme where the change can properly be achieved through varying a condition.
- Adjust a restriction that is preventing the development from proceeding as intended.
For example, a planning permission may require a particular landscaping scheme to be implemented before occupation. If technical or site circumstances change, the developer may seek to vary the condition to allow an alternative landscaping arrangement.
Similarly, a condition may specify particular materials, access arrangements or operating restrictions that the developer wishes to amend. A Section 73 application may provide a route to request those changes, provided they do not alter the operative part of the original permission.
When Should You Use a Section 73 Application?
A Section 73 application may be appropriate when the development remains broadly within the scope of the original planning permission, but one or more conditions need to change.
The following situations illustrate where it may be useful.
When a Planning Condition Restricts Development
Some planning conditions impose requirements that affect how or when a development can proceed. These may relate to construction materials, landscaping, access, drainage, opening hours or the submission of additional technical details.
If a condition becomes impractical or needs to reflect revised circumstances, the developer may apply to vary or remove it.
The authority will consider the proposed changes and decide whether the development should proceed subject to different conditions.
When Approved Details Need to Be Updated
A developer may need to change details that were originally approved through a planning condition.
For example, a condition may require the submission and approval of a particular landscaping or drainage scheme before work begins. If the original proposal needs to be revised, a Section 73 application may be appropriate where the condition itself can be varied to accommodate the alternative details.
The proposed change must still relate to the conditions attached to the permission rather than altering the fundamental description of the development.
When a Development Needs Greater Operational Flexibility
Some permissions include restrictions on how a building or site can operate. These might control opening hours, delivery arrangements, occupancy or the use of particular areas.
Where circumstances change, a developer may seek to amend the relevant condition to allow greater flexibility.
The authority will need to consider whether the proposed change remains acceptable in planning terms, including its potential effects on neighbouring properties, local amenity and the surrounding area.
How Does the Section 73 Application Process Work?
The process involves identifying the relevant conditions, preparing the proposed changes and submitting the application to the local planning authority.
1. Review the Original Planning Permission
The first step is to examine the original decision notice and all conditions attached to the permission.
It is important to understand what each condition requires, when it must be complied with and whether it relates to matters that have already been approved or implemented.
The applicant should also review any approved plans and supporting documents to establish whether the proposed change can be achieved through varying a condition.
2. Identify the Conditions to Be Changed
The application should clearly identify the condition or conditions that need to be varied or removed.
For example, the applicant may wish to replace a condition requiring a specific external material with one allowing an alternative material that achieves an acceptable appearance and performance.
Where only one condition needs changing, it is generally sensible to keep the application focused on that particular issue.
3. Prepare Supporting Documents
The supporting information should explain why the change is necessary and demonstrate that the proposed amendment is acceptable.
Depending on the nature of the application, this may include:
- A copy of the original planning permission and decision notice.
- A schedule identifying the conditions to be varied or removed.
- Revised plans or technical drawings, where relevant.
- Updated transport, drainage, environmental or landscaping information.
- A planning statement explaining the reasons for the proposed changes.
- Evidence addressing any concerns that may arise from the amendment.
The level of supporting information will depend on the scale and nature of the proposed changes.
4. Submit the Application to the Local Planning Authority
The application is submitted to the local planning authority responsible for the original permission, using the appropriate application process.
The authority will assess the proposed changes and consider what conditions should apply to the new permission.
Although statutory consultation and publicity requirements do not generally apply in the same way as they do to an ordinary planning application, the authority has discretion to consult interested parties where the scale or nature of the proposed changes makes this appropriate.
5. Receive the Planning Decision
The authority may approve the application with amended conditions, grant permission without the relevant conditions or refuse the application.
Where permission is granted, the decision notice should clearly identify the new permission and set out the conditions that apply to it.
The applicant should review the decision notice carefully before implementing the development to ensure that the correct permission and conditions are being followed.
What Are the Legal Limitations of a Section 73 Application?
Although Section 73 offers flexibility, it has specific legal boundaries. It is important to understand these limitations because an application that attempts to change something outside the scope of the legislation may be invalid or unsuccessful.
1. You Cannot Change the Description of Development
One of the most important restrictions is that Section 73 cannot be used to change the description of development in the original planning permission.
The description identifies what the authority has granted permission for. It may refer to the type of development, its intended use, the number of units or other defining characteristics.
For example, if permission was granted for a residential development, a developer cannot use Section 73 simply to change the description to a commercial development.
The application must remain within the scope of the original permission.
This restriction was reinforced in Finney v Welsh Ministers [2019] EWCA Civ 1868. The Court of Appeal confirmed that a condition cannot be varied under Section 73 in a way that conflicts with the operative part of the planning permission, including its description of development.
2. You Cannot Use Section 73 to Change the Approved Development Itself
Section 73 deals with conditions, not the operative part of the planning permission.
This means it cannot be used as a general route to replace the approved scheme with a fundamentally different development.
However, this limitation needs to be understood carefully. There is no statutory rule that limits Section 73 amendments to minor or insignificant changes to conditions. The Government’s Planning Practice Guidance confirms that material amendments can be made through Section 73, provided the change relates to conditions and does not alter the operative part of the permission.
For example, changing a condition to allow alternative materials or revised landscaping details may be possible, even where the amendment has a meaningful effect on the development.
The key question is not simply how substantial the change appears. It is whether the proposed amendment can lawfully be achieved through changing a condition without changing the development authorised by the original permission.
3. You Cannot Extend the Original Implementation Deadline
Section 73 cannot be used to extend the time allowed for starting development or submitting an application for approval of reserved matters.
For example, if a planning permission requires development to begin within three years, a developer cannot use Section 73 to replace that requirement with a longer period.
Where additional time is needed, a different planning route may be required, depending on the circumstances and the status of the original permission.
4. Section 73 May Not Be Available if the Original Permission Has Expired
Section 73 cannot be used where the original planning permission included a time limit for starting development and that period has expired without development having begun.
This restriction is set out in Section 73(4) of the Town and Country Planning Act 1990.
For example, if permission required work to begin within three years but the deadline passed without any lawful commencement, a Section 73 application cannot be used to revive that permission by changing its conditions.
The developer may need to consider a fresh planning application instead.
5. Certain Statutory Conditions Cannot Be Removed Through Section 73
The legislation also places restrictions on the authority’s ability to use Section 73 to disapply certain statutory requirements.
For example, Section 73 cannot be used to remove the relevant biodiversity gain condition imposed under the statutory biodiversity gain framework. It also does not authorise the removal of the condition relating to development progress reports under Section 90B of the Town and Country Planning Act 1990.
These restrictions mean that not every condition can be varied or removed, even where the applicant considers that it is no longer appropriate.
6. A Section 73 Permission Does Not Automatically Change a Section 106 Agreement
A planning permission may be supported by a Section 106 Agreement containing obligations relating to affordable housing, infrastructure contributions or restrictions on the use of the development.
A Section 73 application does not automatically vary or discharge those obligations.
If the new permission requires changes to an existing planning obligation, a separate deed of variation or other appropriate legal process may be necessary.
This should be considered before submitting the application, particularly where the planning obligation is linked to the conditions or delivery arrangements of the original development.
What Happens When a Section 73 Application Is Approved?
An approved Section 73 application creates a new, independent planning permission.
This is an important distinction. The original permission does not disappear or automatically become amended. Instead, the new permission exists alongside the original approval.
The applicant can generally choose which permission to implement, provided all relevant conditions and legal requirements are satisfied.
For example, a developer may have an original permission with a condition requiring a particular external finish. If a Section 73 application is approved to allow an alternative finish, the developer may choose to proceed under the new permission or retain the original permission.
However, it is essential to understand the conditions attached to each permission. The new decision notice should be read as a complete set of requirements, including any original conditions that continue to apply.
Implementing the development under one permission while relying on selected conditions from another can create legal and enforcement difficulties.
What Happens if a Section 73 Application Is Refused?
If the local planning authority refuses a Section 73 application, the original planning permission remains in place.
The developer may therefore still be able to proceed under the original approval, provided it remains valid and all its conditions can be satisfied.
There may also be a right to appeal the refusal to the Planning Inspectorate. The appeal will be considered under the applicable planning procedure, and the applicant will need to address the authority’s reasons for refusing the proposed changes.
Before appealing, it is worth examining whether the refusal resulted from a fundamental legal limitation, insufficient supporting evidence or planning concerns that could be addressed through a revised application.
Where the proposed change cannot legally be achieved through Section 73, an appeal may not resolve the underlying problem. A fresh planning application or another appropriate route may be more suitable.
Is a Section 73 Application the Same as a Section 96A Application?
No. Both procedures can be used to make changes to an existing planning permission, but they serve different purposes.
A Section 73 application allows an applicant to seek a new planning permission with varied or removed conditions. It can be used for material amendments where the change can lawfully be made through a condition.
A Section 96A application, by contrast, is used to make non-material amendments to an existing planning permission.
The distinction is important because a change that is too substantial to be considered non-material may require a different route.
| Section 73 | Section 96A |
|---|---|
| Allows conditions to be varied or removed. | Allows non-material amendments to an existing permission. |
| Can accommodate material changes where they relate to conditions. | Limited to changes considered non-material by the local planning authority. |
| Creates a new, independent planning permission. | Amends the existing planning permission. |
| Cannot change the description of development or extend the implementation deadline. | Cannot be used to make changes that go beyond the non-material amendment process. |
Choosing the correct procedure depends on the nature of the proposed amendment and the legal effect it would have on the original permission.
Does a Section 73 Application Require a New Environmental Assessment?
Potentially. A Section 73 application is treated as a new planning application for the purposes of the Environmental Impact Assessment Regulations.
Where the development falls within the relevant categories and thresholds, the local planning authority may need to carry out a fresh screening exercise to determine whether an Environmental Impact Assessment is required.
This is particularly important for larger developments and projects with potentially significant environmental effects.
An applicant should therefore consider whether the proposed changes could trigger additional environmental assessment requirements before submitting the application.
How Can You Avoid Problems with a Section 73 Application?
A carefully prepared application can help reduce delays and avoid legal difficulties.
Before applying, consider the following:
- Check the original permission: Confirm that the planning permission remains valid and that development has been lawfully commenced where required.
- Examine the relevant conditions: Identify precisely which conditions need to change and what the proposed wording should achieve.
- Stay within the legal scope: Ensure the amendment does not change the description or operative part of the original permission.
- Consider related obligations: Review any Section 106 Agreement or other legal commitments that may need separate amendment.
- Prepare appropriate evidence: Provide sufficient planning and technical information to justify the requested changes.
- Review environmental requirements: Establish whether additional environmental screening or assessment may be necessary.
These steps can help establish whether Section 73 is the right route and whether the proposed changes can be supported by the available evidence.
How Charrette Law Can Help with Planning Permission Issues
Planning conditions can have a significant influence on the cost, timing and delivery of a development. Where an existing condition no longer reflects the practical requirements of a project, identifying the correct legal route for making changes is essential.
Whether you are considering a Section 73 application, reviewing restrictive planning conditions or assessing the implications of an amended planning permission, it is important to understand the legal limitations before proceeding.
Charrette Law can be contacted to discuss your planning and property-related requirements and establish whether its services are suitable for your circumstances. A clear understanding of the relevant planning framework can help you assess your options and approach the next stage of your development with greater confidence.
Frequently Asked Questions
What is the purpose of a Section 73 planning application?
Its purpose is to allow an applicant to seek planning permission for development without complying with one or more conditions attached to an existing permission. It can be used to vary or remove conditions where the proposed changes fall within the legal scope of Section 73.
Can Section 73 be used to make major changes to a development?
There is no statutory limit on the degree of change that can be made to conditions through Section 73. However, the application cannot change the description or operative part of the original permission. The scale of a proposed change is therefore not the only consideration; its legal relationship to the original permission is critical.
Can a Section 73 application remove all planning conditions?
An applicant can request the removal of conditions, but the local planning authority must decide what conditions should apply to the new permission. Certain statutory conditions cannot be disapplied through Section 73, and the authority may impose other appropriate conditions.
Does a Section 73 application create a new planning permission?
Yes. If approved, it creates a new, independent planning permission with different or amended conditions. The original permission remains valid and unchanged, provided it has not otherwise expired or been superseded through implementation or other legal circumstances.
Can Section 73 change the description of development?
No. Section 73 cannot be used to change the description of development in the original planning permission. Where a proposed change alters the operative part of the permission, another planning route may be necessary.
Can I use Section 73 to extend a planning permission?
No. Section 73 cannot be used to extend the deadline for starting development or submitting an application for approval of reserved matters. A different planning application may be required.
What is the difference between a Section 73 application and a Section 96A application?
Section 73 is used to vary or remove conditions and creates a new planning permission. Section 96A is used for non-material amendments to an existing permission and does not create a separate permission.
Can I appeal if my Section 73 application is refused?
Yes. An applicant can generally appeal a refusal to the Planning Inspectorate, subject to the applicable statutory procedure and deadlines. The appeal should address the reasons for refusal and demonstrate why the proposed changes are acceptable and legally permissible.
