Appealing a refusal to modify a section 106 obligation
Where a council refuses to modify a planning obligation, section 106B provides an appeal. The five year rule, the two statutory tests and the evidence that decides them.
A refusal to modify a section 106 obligation carries its own appeal, and it is not a section 78 planning appeal. The route is section 106B of the Town and Country Planning Act 1990, available where the authority has determined that the obligation should continue without modification, or where it has failed to determine the application at all. Before you reach it, the application under section 106A has to be made properly, and for most obligations that means waiting until five years have passed.
The section 106B appeal is used far less than it should be. Developers holding obligations from a 2015 permission on a site that has since changed completely tend to assume they are stuck with them.
When an obligation can be modified or discharged
There are two routes, and they are quite different in character.
The first is agreement. At any time, the authority and the person against whom the obligation is enforceable can agree to modify or discharge it, by deed. No statutory period applies, no appeal arises, and the negotiation is whatever the parties make of it. Most changes happen this way.
The second is the statutory application. After the relevant period has expired, any person against whom the obligation is enforceable can apply to the authority to have it modified or discharged, whether or not the authority agrees. This is the route that matters when the authority will not negotiate.
On such an application the authority has exactly three possible determinations. That the obligation shall continue without modification. That it no longer serves a useful purpose, in which case it shall be discharged. Or that it continues to serve a useful purpose but would serve that purpose equally well if modified in the way applied for, in which case it shall be modified accordingly.
Note the limit in that third option. The authority cannot invent a different modification. It can only accept the one you applied for or refuse, which means the drafting of your proposed modification is the whole application.
The five year rule and the application route
The relevant period is five years from the date the obligation was entered into, unless a different period is prescribed. Apply earlier and the authority has no jurisdiction to determine it, though it can still agree a deed of variation.
Five years from the deed, not from the permission and not from implementation. On a scheme where the agreement was signed some months before the decision notice was issued, that distinction can matter.
The application itself goes to the authority in the form the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 require. Include:
- The deed, with the parties, the date and the land it binds.
- The specific obligation or clause you want modified or discharged, quoted in full.
- The precise modification sought, drafted as replacement wording.
- Why the obligation no longer serves a useful purpose, or why the proposed wording would serve the same purpose equally well.
- The evidence behind that case.
Get the drafting checked by whoever will complete the deed. An application that seeks a modification which cannot be conveyanced is refused for a reason that has nothing to do with planning merits.
Grounds that persuade an authority
Two statutory tests, and they demand different arguments.
"No longer serves a useful purpose" suits obligations that have been overtaken by events. A financial contribution towards a facility the authority has decided not to build. A restriction referencing a policy that has been superseded by an adopted plan. A travel plan obligation for a use that no longer occupies the site. An obligation to provide a bus service on a route that has been withdrawn.
"Would serve that purpose equally well if modified" suits obligations where the objective survives but the mechanism has failed. A contribution index-linked to a measure no longer published. A trigger tied to occupation of a phase that has been redesigned out. An open space obligation specifying a layout that a later consent superseded.
What does not persuade is the argument that the obligation has become inconvenient or expensive. Authorities and inspectors read that as a request to reopen the original bargain, and the tests do not accommodate it. The reasoning in the article on reading reasons for refusal before you decide to appeal applies here too: the refusal tells you which test the authority thought you had failed.
The appeal under section 106B
Where the authority determines that the obligation shall continue without modification, or fails to determine the application within the prescribed period, an appeal lies to the Secretary of State. The appeal is dealt with by the Planning Inspectorate in the usual way, normally by written representations.
Check the appeal period against the current Regulations rather than assuming it matches a section 78 appeal, and diarise it from the date of the determination notice.
The inspector applies the same statutory tests the authority did. That has a useful consequence and an awkward one. Useful, because the decision is a narrow legal and evidential question rather than a broad planning balance. Awkward, because there is nowhere to go with an argument that does not fit one of the two tests.
Read appeal decisions on obligation modification before you commit, and the article on using appeal decisions as evidence in an application sets out how far they can be relied on. They are indicative of how inspectors have approached the tests rather than binding.
Evidence on whether the obligation still serves a useful purpose
This is an evidence case, and thin evidence loses it.
Gather, and put in as appendices: the authority's own published position on the facility or service the contribution was for, including any committee report or infrastructure funding statement recording that the money was not spent or the scheme was abandoned. Add the adopted plan policies in force now against those in force when the deed was signed, correspondence with the relevant service provider, and where a physical trigger is in dispute, the as-built position with drawings.
Correspondence with the authority's own departments is the most useful material and the least often obtained. A highways officer confirming in writing that a junction improvement is no longer programmed is worth more than any amount of argument about the same point.
Where the obligation concerns affordable housing, the evidence has to be a viability case, which is a different exercise altogether and is dealt with next.
Affordable housing obligations and viability
There used to be a bespoke route for renegotiating affordable housing obligations on viability grounds, inserted in 2013 and time-limited. It has gone. Applications on viability grounds now go through section 106A, or through a fresh planning application, or through a negotiated deed.
The evidential bar is the one national guidance on viability sets, and the presumption in planning policy is that an obligation agreed on a scheme found viable at the time should hold. Cost inflation since the deed was signed is not, on its own, an answer.
Where viability is the argument, expect the authority to commission an independent review, and expect to be asked to pay for it. Submit a Viability Assessment built on an open appraisal with stated inputs, and be prepared for the review to test the land value benchmark rather than the build costs. The tests in regulation 122 of the Community Infrastructure Levy Regulations 2010 are also worth revisiting, because an obligation that was never necessary to make the development acceptable is vulnerable on more than one front.
Where the obligation includes an Affordable Housing Statement commitment expressed in tenure terms, a modification changing tenure mix rather than quantum is often more achievable than a reduction in numbers.
Alternatives by agreement
Before the statutory route, test the negotiated one properly.
A deed of variation can do things the statutory application cannot. It can change a trigger, substitute an in-kind provision for a payment, stage a contribution, add an index, or release one parcel while binding another. It needs the authority's agreement, and authorities agree more often when the proposal solves a problem they also have.
Two tactics help. Offer something, because a variation that is purely a reduction reads as a request for a discount. And deal with the monitoring and legal costs openly, since that is frequently the practical obstacle rather than the substance.
Set out the planning case for the variation in a Planning Statement that addresses the statutory tests even where you are asking for agreement, because that document becomes the application if the negotiation fails.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.
Frequently asked questions
When can I apply to modify a section 106 obligation?
By agreement at any time, using a deed of variation. Without agreement, a statutory application under section 106A can only be made once the relevant period has expired, which is five years from the date the obligation was entered into unless a different period is prescribed. That runs from the deed, not from the permission.
What tests does the council apply?
Two. Whether the obligation no longer serves a useful purpose, in which case it must be discharged. Or whether it continues to serve a useful purpose but would serve it equally well if modified exactly as you applied for. The authority cannot substitute a different modification, so the wording you propose is the application.
Where does the appeal go?
To the Secretary of State under section 106B, dealt with by the Planning Inspectorate and usually by written representations. It is available where the authority determines the obligation should continue without modification, or fails to determine the application in time. Check the current appeal period in the Regulations and diarise it from the determination notice.
Can I renegotiate affordable housing on viability grounds?
The bespoke route introduced in 2013 was time-limited and has been repealed. Viability arguments now go through section 106A, a fresh planning application or a negotiated deed. Expect the authority to commission an independent review of your appraisal, and expect to be asked to pay for it.
Is a deed of variation easier than the statutory route?
Usually, and it can achieve things the statutory application cannot, such as changing a trigger, staging a contribution or substituting in-kind provision for a payment. It needs the authority's agreement. Offering something rather than only seeking a reduction, and dealing openly with legal and monitoring costs, both help.
Sources and further reading
This article is general guidance about the planning system in England and, where stated, the rest of the UK. It is not legal or professional advice. Check your local planning authority’s validation requirements and take professional advice for your specific site.