What the Ministerial Letter on S73 Means for Practitioners (and the Emerging Role of Section 73B)

The recent letter from the Minister of State for Housing and Planning to the Planning Inspectorate (published today) on modifying planning obligations through Section 73 applications is a helpful clarification for practitioners navigating post-permission change. It also sits within a wider reform agenda, including the introduction of Section 73B under the Levelling-up and Regeneration Act 2023.

At its core, the letter reinforces a familiar but important principle: where a planning permission is varied, planning obligations should continue to operate effectively and proportionately, rather than falling away by default.

Section 73 (Varying or Removing Conditions)

Section 73 of the Town and Country Planning Act 1990 allows an applicant to seek a new permission that varies or removes conditions attached to an existing consent. Crucially, it cannot be used to change the description of development itself.

Where development is approved under Section 73, careful attention should be paid to the drafting of any associated planning obligations. Best practice is for Section 106 agreements 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.

Such 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 consent. This approach avoids unnecessary duplication, delay and legal cost, while ensuring that mitigation and infrastructure commitments remain enforceable.

In the absence of clear drafting, there is a greater risk that 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, and that agreements should be interpreted and drafted to support continuity.

Affordable housing considerations

The Minister’s letter recognises the central role that affordable housing plays in many developments, but it also explicitly acknowledges that flexibility may be required where changes to planning permissions are necessary to support scheme 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.

Importantly, the letter frames flexibility on affordable housing not as an erosion of policy objectives, but as a means of securing delivery, especially in challenging market conditions. Any variation must remain proportionate and justified, but the emphasis is firmly on enabling viable schemes to proceed rather than preserving obligations in circumstances where they no longer reflect reality.

This reinforces the broader message of the letter: that planning obligations should support development and delivery, and that Section 73 should be used as a tool to respond sensibly to changed circumstances.

Section 73A (Permission After the Event)

Section 73A provides a route to apply for permission where development has already been carried out or a condition breached. While often associated with regularisation, it remains a full planning application in substance. Planning obligations can still be imposed where they meet the statutory tests, reinforcing the same principle highlighted in the Minister’s letter: obligations follow acceptable development, not procedural technicalities.

Section 73B (A New Route – Not Yet in Force)

The Levelling-up and Regeneration Act 2023 legislated for Section 73B, which will be brought into effect through secondary legislation. Once commenced, it will create a new statutory route to vary planning permissions, going further than Section 73. Unlike Section 73, Section 73B 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.

While detailed regulations are still awaited, the direction of travel is clear: greater flexibility to adapt consents without the need for a wholly new application, while maintaining proper planning control.

When Section 73B comes into force, the approach set out in the Minister’s letter will be directly relevant. If permissions can be varied more flexibly, robust alignment between varied permissions and planning obligations, including affordable housing, will be even more critical.

Across Sections 73, 73A and the proposed 73B, the policy message is consistent:

• Changes to permissions should be supported where justified

• Planning obligations should remain effective and enforceable

• Legal drafting and decision-making must keep pace with increasing flexibility in the system

  
  

For practitioners, the challenge is not just using the right statutory route, but ensuring that permissions, conditions and obligations continue to work coherently together.

Matthew Pennycook: it may be necessary in specific circumstances to modify existing planning obligations to improve the viability of housing developments. Image under licence https://creativecommons.org/licenses/by/4.0/deed.en.