Appeals where the obligation was never completed

A refusal issued because the section 106 agreement was never signed is appealable, and the cure is a unilateral undertaking executed by the appellant. Section 106(9) of the Town and Country Planning Act 1990 allows a planning obligation to be entered into by a person interested in the land without the authority being a party, which is exactly what an inspector needs when the council has already resolved that the scheme is acceptable subject to the obligation.

These appeals are unusual because the planning merits are largely agreed. The committee resolved to grant. The officer report supported it. What failed was conveyancing, or a title problem, or a deadline in a delegated authority resolution that expired. The appeal is therefore won or lost on the mechanics of the obligation rather than on policy, and it is one of the few appeal types where getting the drafting right matters more than getting the argument right.

Why permissions stall on obligations

A resolution to grant subject to completion of a section 106 agreement is not a permission. It is a decision to issue one once a condition precedent is met, and officers normally hold delegated authority to refuse if the agreement is not completed within a stated period.

Things that cause the delay:

• A registered charge over the land where the lender will not consent to the obligation within the timescale
• Multiple owners, one of whom will not execute
• Unregistered land, or a title with a defect that has to be rectified first
• Disagreement over the heads of terms after the resolution, usually on viability or on monitoring fees
• An applicant who has lost interest because the economics have changed

The last one is more common than anybody admits. A refusal on this ground sometimes suits an applicant who wants to keep the planning history alive without spending more money, and an appeal then follows months later when a buyer appears.

Refusals issued because an agreement was not signed

The reason for refusal will usually say that in the absence of a completed agreement the development fails to mitigate its impacts, with a list of the obligations that were to be secured. Read that list carefully, because it is the specification for your undertaking.

Check each item against the statutory tests. Regulation 122 of the Community Infrastructure Levy Regulations 2010 requires an obligation to be necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind. An authority that asked for a contribution failing those tests cannot rely on its absence at appeal, and inspectors do strike out individual heads of terms.

So the appeal often has two parts. A unilateral undertaking offering the obligations that pass the tests, and a submission that one or two of the items on the council's list do not.

Appealing with a unilateral undertaking

The undertaking is a deed, executed by everyone with an interest in the land capable of binding it, containing covenants in favour of the authority. It needs to do everything the agreement would have done, including the review and payment machinery, without the authority's signature.

Practical points that decide whether it works:

1. Recite the appeal and the application clearly, and define the development by reference to the appeal drawings.
2. Make the covenants conditional on the grant of planning permission and on implementation, so nothing bites if the appeal fails.
3. Include the usual mechanics: indexation, payment triggers, monitoring provisions and a clause confirming the obligation runs with the land.
4. Attach the plan showing the land bound, with the title numbers listed.
5. Send a draft to the council early and ask for comments in writing, because an inspector will give weight to the authority's view on whether the drafting achieves the purpose.

Where affordable housing is involved, the undertaking needs the full schedule: tenure split, unit numbers and types, nomination arrangements, transfer mechanism and the cascade if no registered provider takes the units. An Affordable Housing Statement prepared alongside it keeps the planning case and the deed consistent, which matters because inspectors read both.

Title problems that prevent execution

Not every obstacle is solvable. An obligation only binds land in which the covenantor holds an interest, so a scheme that needs access land in third party ownership cannot be fully secured by the appellant alone.

Where part of the land cannot be bound, consider whether the obligation can be restructured: a covenant not to implement until the third party land is bound, a Grampian condition dealing with the off-site element, or a reduced scheme that sits entirely within the land you control. Inspectors will accept a condition where an obligation is impossible, provided the condition meets the usual tests.

Unregistered land needs first registration or a statutory declaration of title, and both take time. Start that work on the day the refusal arrives rather than in the final week before the appeal deadline.

Mortgagee and third party consents

A mortgagee is not bound by an obligation entered into by the borrower unless it is a party, and a lender who later takes possession could in principle disregard it. Authorities know this, and many insist on the lender joining in.

For an undertaking at appeal, the position is pragmatic. Approach the lender early, explain that the covenants are conditional on permission and implementation, and offer the standard mortgagee protection clause limiting liability to the period of ownership. Most lenders will execute on that basis. Where a lender refuses outright, say so in the appeal and explain the consequence rather than leaving the inspector to discover the gap.

Timetable for submitting an obligation at appeal

The Inspectorate's procedural guidance sets out when documents are due, and executed obligations have a deadline within the appeal timetable. Missing it is the most avoidable way to lose this type of appeal.

Work backwards from that date. Allow three weeks for execution by every party, two weeks for the council's comments on the draft, and two weeks to produce the first draft. That is seven weeks, which on a written representations appeal means starting the drafting at the same time as the statement of case.

Submit the draft with the appeal documents and the executed deed by the deadline, with a short covering note explaining what changed between the two. Where a deed arrives late, an inspector may determine the appeal without it, and the obligations will then be absent from the planning balance.

Illustrative example. A 14 dwelling scheme refused after a resolution to grant, where the obligation covered an off-site play contribution, affordable housing and a monitoring fee. The appellant offered a unilateral undertaking for the first two and argued the monitoring fee failed the regulation 122 tests as drafted. The inspector accepted the undertaking, declined to attach weight to the fee, and allowed the appeal. The structure of that outcome is common; the detail depends on how the fee was justified.

Avoiding the situation at resolution stage

The cheapest fix is at committee. Ask for the resolution to grant to include a realistic completion period, and ask for officers to have delegated authority to extend it rather than to refuse automatically.

Then front-load the conveyancing. Get the title investigated, the lender approached and the heads of terms agreed in writing before the committee date, not after. Where the delay is caused by a dispute over viability, resolve it before the resolution: a Viability Assessment settled at application stage removes the most common cause of post-resolution argument.

Where a committee has gone against its officers and the obligation then stalls, the dynamics are different again, and the note on committee refusals against officer advice explains how inspectors have handled the resulting appeals. Decisions on comparable obligation disputes are useful as indications of approach rather than binding precedent, and the guide to using appeal decisions in a planning application sets out how to cite them properly.

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.