Introduction
Our lawyers at Planning Clarity Legal regularly advise developer and landowner clients on planning legal agreements (also known as planning obligations) made pursuant to Section 106 of the Town and Country Planning Act 1990 (the Act). We are also regularly approached by clients to negotiate subsequent variations to these Section 106 Agreements. In this blog post, we discuss the ways Section 106 Agreements can be varied and the common variations we see requested in practice.
Ways to vary a Section 106 Agreement
There are two routes available for seeking the variation of a Section 106 Agreement pursuant to Section 106A of the Act:
(1) A Deed of Variation can be entered into with the LPA
This Deed of Variation is entered into between the Local Planning Authority (LPA) and all those persons / organisations with a current legal interest in the site which was bound by the Section 106 Agreement. This Deed can be entered into at any time with the consent of the LPA to provide for variations to the obligations under the Section 106 Agreement.
(2) An application can be made to the LPA
This application can only be made to the LPA after the ‘relevant period’ has expired, which is by default a period of 5 years from the date the Section 106 Agreement was entered into.
Where an application is made to the LPA, they may determine either of the following in relation to the obligations under the Section 106 Agreement:
- that the obligation shall continue to have effect without modification;
- if the obligation no longer serves a useful purpose, that it shall be discharged; or
- if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.
Where the LPA fails to determine or refuses the application, then there is right of appeal to the Secretary of State (via the Planning Inspectorate) under Section 106B of the Act.
Common variations requested
Common variations to Section 106 Agreements which we encounter in practice include the following:
- Variations to the references to ‘Planning Permission’, ‘Planning Application’ and ‘Development’ under the original Section 106 Agreement to essentially tie the obligations under the Section 106 Agreement to a new planning permission to be granted pursuant to a Section 73 application (i.e. an application to vary conditions of an existing planning permission)
- Variations to the amounts of financial contribution obligations under Section 106 Agreements to reflect changes made to the size of the approved development (given that many of these contributions are calculated based on formulae which refers to the size or number of units in a development)
- Variations to occupation or other restrictions on the development to reflect changes in how the development has progressed since the time the original Section 106 Agreement was entered into and planning permission was granted
- Variations to affordable housing obligations resulting from a request for these changes from a Registered Provider which a developer or landowner is dealing with to take the affordable housing in a development.
How can we help at Planning Clarity Legal?
Our lawyers at Planning Clarity Legal are experts at negotiating on behalf of developers and landowners Section 106 Agreements and variations to these Agreements (through Deeds of Variation and applications under Section 106A of the Act). We would always recommend that a specialist planning lawyer be retained to negotiate these Agreements and variations to ensure that the necessary legal protections are included which if missing can come back to bite a developer or landowner at a later time!
We also have a dedicated website discussing Section 106 Agreements and variation of these Agreements which can be accessed at the following website link: https://s106agreements.co.uk/.
Note: all comments and views expressed in this blog are merely opinions and provided for information purposes only and do not constitute legal advice which can be relied upon. Should you require legal advice on a matter then please contact us
