Completing a section 106 agreement before the decision

A section 106 agreement has to be completed, meaning signed and dated as a deed by every party with an interest in the land, before the council issues the decision notice. Section 106 completion before decision is not a formality the case officer can juggle: the obligation binds the land, and a permission granted without the executed deed in place leaves the council with policy requirements it cannot enforce. That is why committee reports end with a resolution to grant subject to completion rather than a grant, and why schemes sit in limbo for months after members have voted in favour.

The practical consequence for a developer is that the critical path runs through two solicitors and a Land Registry title, not through the planning department. Programme accordingly.

Why the deed has to come first

Section 106 of the Town and Country Planning Act 1990 lets a person with an interest in land enter into a planning obligation, enforceable by the local planning authority against that person and anyone deriving title from them. The obligation is created by the deed. Until the deed exists, there is nothing to enforce.

A council that issued the permission first would be relying on the applicant to sign afterwards out of goodwill. Nothing compels them to, and the permission would stand with its affordable housing, open space and highway contributions unsecured. Councils will not take that risk, and their monitoring officers and section 151 officers will not let them.

There is one narrow exception worth knowing about. A unilateral undertaking, also made under section 106, is executed by the applicant alone and is commonly used at appeal, where the Planning Inspectorate needs the obligation in place before the decision is issued but the council is not a willing signatory. It still has to be completed before the decision.

Resolutions to grant subject to completion

Most major applications reach committee with a recommendation to approve subject to the completion of a section 106 agreement and to conditions. Members vote on that package. The resolution gives officers delegated authority to issue the permission once the deed is signed, usually with a backstop: if the agreement is not completed within a stated period, often three or six months, the officer may refuse the application or return it to committee.

Check the wording of that backstop in the committee report before the meeting. If it is three months and your title has a mortgagee, a restrictive covenant and a ransom strip, three months is tight. Officers can usually extend, but the extension needs asking for in writing well before the deadline, not the week after it passes.

A resolution is not a permission. It confers no development rights, cannot be implemented, and does not stop the clock on anything. If you need certainty for a funding drawdown or a conditional land contract, the trigger should be the decision notice, not the committee minute.

Who has to be a party, and the title problems that bite

Everyone with a legal interest in the application site that the obligation needs to bind has to execute the deed. In practice that means:

• the freeholder, and any leaseholder whose interest is long enough to matter
• any mortgagee or chargeholder, whose consent is needed so the obligation is not lost on a sale by the lender
• the local planning authority, and often the county council as highway or education authority where contributions are being paid to it
• occasionally a third party, such as the owner of adjoining land over which an access or a Grampian obligation runs

Order the official copies and the title plan at the start of the application, not when the officer asks for them. The problems that cause most delay are discoverable on day one: an unregistered strip along a boundary, a right of way in favour of a neighbour, a historic rentcharge, a deceased registered proprietor whose estate has not been administered, or a lender who will only engage through a panel solicitor on a six-week turnaround. Ownership certificates served with the application use the same title information, so the research does double duty. Our note on ownership certificates A to D and who must be told sets out how those interests are declared.

Where the site is in option or under a conditional contract, agree early who signs. A promoter without a legal interest cannot bind the land, and a landowner who has not read the draft will not sign it on the day of the deadline.

Drafting triggers that actually work on site

The clauses that cause arguments later are the triggers: the events that make an obligation payable or a work deliverable. Councils favour early triggers, developers favour late ones, and the compromise should be an event that is unambiguous and verifiable from the site.

Two other drafting points repay attention. Index contributions to a published index, name it, and state the base date, because an unindexed sum negotiated in 2026 and paid in 2029 is worth less than the council intended and an index with no base date is a dispute waiting to happen. And ask for a clawback of unspent money: many deeds now require the council to repay contributions not spent within five or ten years of receipt, and that repayment clause is far easier to insert now than to add later by deed of variation, as our note on varying a section 106 agreement after permission explains.

Monitoring fees and legal costs

Expect to pay the council's legal costs of preparing and completing the deed, whether the application is approved or withdrawn. The usual arrangement is an undertaking from your solicitor to pay those costs on completion or on abortive work, given before the council's solicitor starts drafting. Councils that use external solicitors will say so.

Separately, most deeds now include a monitoring fee: a sum to cover the officer time spent checking that the obligations are delivered. Since the Community Infrastructure Levy Regulations were amended, councils may charge a monitoring fee provided it is proportionate and reasonably related to the monitoring actually carried out. Fees are often set per obligation with a cap, and the schedule should be published. Where a quoted fee looks disproportionate to the number of obligations, ask for the published basis. Budget it alongside the application fee itself, which has its own reliefs set out in our note on planning fee exemptions and reductions worth claiming.

When a condition can do the job instead

Not every policy requirement needs a deed. A condition is cheaper, faster and avoids the title problem entirely. The test in national policy and the Planning Practice Guidance on the use of conditions is the familiar six: necessary, relevant to planning, relevant to the development, enforceable, precise and reasonable in all other respects.

A Grampian condition, which prevents development until something happens on land outside the applicant's control, works where the off-site work is capable of being carried out and there is a reasonable prospect of it happening within the life of the permission. Highway works under section 278 of the Highways Act 1980 are often handled this way.

What a condition cannot do is require a payment of money. A financial contribution has to be secured by obligation, because a condition requiring payment to the council is not enforceable as a planning condition. Affordable housing tenure and the mechanism for transfer to a registered provider also sit more comfortably in a deed, because they need to bind successors for decades.

So the honest position is that conditions handle works and restrictions, obligations handle money, land transfers and anything that has to run with the land after the scheme is sold. Where an officer proposes a deed for something a condition could cover, it is worth challenging, politely, with the six tests.

Timescales and the three things that cause delay

On a straightforward minor scheme with a single registered freeholder and a standard template, four to eight weeks from instruction to completion is realistic. On a major with multiple titles, a county council as second authority and a negotiated affordable housing package, three to six months is common and longer is not unusual.

The delays almost always come from one of three places. Title, as above. Heads of terms that were never agreed in substance, where the committee resolution recorded a contribution figure but not the trigger, the index or the clawback. And capacity, because many legal teams are small and your draft sits in a queue behind someone else's.

Three practical moves shorten the programme. Ask for the council's template deed at validation and have your solicitor mark it up before the officer's report is written. Agree heads of terms in a signed schedule, not in email. And where the determination period is running out, consider whether an extension of time agreement is better than letting the application go to appeal on non-determination, a choice covered in our piece on appealing non-determination, and whether to wait.

If you are putting the application pack together and want the policy narrative drafted while the legal work runs in parallel, a Planning Statement is the document that sets out how the obligations meet the plan's requirements. Enter your postcode on PlanScope to see which reports your site needs.

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.