Ministerial letter on S73

The recent letter from the Minister of State for Housing and Planning to the Planning Inspectorate, published today, provides a useful clarification for practitioners dealing with post-permission changes to development schemes. It is particularly relevant to the use of Section 73 applications to modify planning obligations, and it also needs to be understood within the wider reform agenda, including the forthcoming introduction of Section 73B under the Levelling-up and Regeneration Act 2023.

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At its core, the letter reinforces a familiar but important principle: where a planning permission is varied, the associated planning obligations should continue to operate effectively and proportionately, rather than falling away by default. That is significant because variations to planning permissions are now a routine part of delivery, particularly where schemes need to respond to changing market conditions, viability pressures, technical requirements or phasing issues.

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Section 73 of the Town and Country Planning Act 1990 allows an applicant to seek a new planning permission that varies or removes conditions attached to an existing consent. It is, however, limited in scope. A Section 73 application cannot be used to change the description of development itself. Its role is to vary the conditions on which a permission operates, not to replace the approved development with something materially different.

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Where a new permission is granted under Section 73, careful attention needs to be given to the drafting of any associated Section 106 agreement. Best practice is for planning obligations to include express Section 73 clauses confirming that the obligations continue to apply to the development as varied, without the need for the agreement to be amended or re-entered into. These clauses typically provide that the obligations bind the land and apply to any planning permission granted under Section 73 which varies or removes conditions attached to the original permission. This avoids unnecessary duplication, delay and legal cost, while ensuring that mitigation, infrastructure and affordable housing commitments remain enforceable.

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Where that drafting is absent or unclear, there is a greater risk that the parties will need to renegotiate or formally amend the agreement, particularly where the relationship between conditions and obligations is not explicit. The Minister’s letter reinforces the expectation that planning obligations should not fall away simply because a Section 73 permission is granted. The practical message is that agreements should be drafted and interpreted in a way that supports continuity, rather than creating uncertainty each time a permission is varied.

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The letter also recognises the central role that affordable housing plays in many development schemes, while acknowledging that flexibility may be required where changes to planning permissions are necessary to support viability and delivery. In the context of Section 73 applications, the letter makes clear that affordable housing obligations are not immune from review where there is a genuine planning justification. Inspectors and local planning authorities are encouraged to take a pragmatic, evidence-led approach, particularly where rigid adherence to previously agreed obligations would risk delaying or preventing development from coming forward.

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Importantly, the letter frames flexibility on affordable housing not as an erosion of policy objectives, but as a means of securing delivery in circumstances where market conditions or scheme economics have changed. Any variation still needs to be proportionate and justified, but the emphasis is on enabling viable schemes to proceed rather than preserving obligations that no longer reflect the reality of delivery. That reflects the broader message of the letter: planning obligations should support development and delivery, and Section 73 should be capable of responding sensibly to changed circumstances.

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Section 73A provides a separate route to apply for planning permission where development has already been carried out, or where a condition has been breached. Although often associated with regularisation, it remains a full planning application in substance. Planning obligations can still be imposed where they meet the statutory tests. This reinforces the same underlying principle: obligations should follow acceptable development where they are necessary, directly related to the development, and fairly and reasonably related in scale and kind, rather than turning on procedural technicalities.

The Levelling-up and Regeneration Act 2023 also legislated for a new Section 73B, although it has not yet been brought into force. Once commenced through secondary legislation, Section 73B will create a new statutory route for varying planning permissions which goes further than Section 73. Unlike Section 73, it is intended to allow certain changes to the description of development and other elements of a permission, provided the resulting scheme is not substantially different from what was originally approved.

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The detailed regulations for Section 73B are still awaited, but the direction of travel is clear. The planning system is moving towards greater flexibility to adapt existing consents without requiring a wholly new application, while still maintaining proper planning control. When Section 73B comes into force, the approach set out in the Minister’s letter will become even more important. If permissions can be varied more flexibly, the relationship between varied permissions and planning obligations, including affordable housing obligations, will need to be carefully managed.

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Across Sections 73, 73A and the proposed Section 73B, the policy message is consistent. Changes to planning permissions should be supported where they are justified, planning obligations should remain effective and enforceable, and legal drafting and decision-making need to keep pace with a more flexible planning system. For practitioners, the challenge is not simply choosing the right statutory route. It is ensuring that permissions, conditions and obligations continue to work coherently together as schemes evolve.