Deeds of variation under section 106A

A deed of variation is the instrument that changes a planning obligation after it has been entered into. Section 106A of the Town and Country Planning Act 1990 provides two routes to it: agreement between the local planning authority and everyone against whom the obligation is enforceable, which can happen at any time, or a formal application to modify or discharge, which can only be made once the relevant period has expired. That period is five years from the date the obligation was entered into unless regulations prescribe otherwise.

Nearly all variation in practice happens by agreement. The statutory application route matters when the authority will not agree, and knowing it exists changes the negotiation.

What section 106A allows

Section 106A provides that a planning obligation may not be modified or discharged except in accordance with the section. The two mechanisms sit in subsections (1) and (3).

Under the agreement route, the obligation is varied by a deed executed by the authority and by every person against whom the obligation is enforceable. That is broader than it sounds: an obligation is enforceable against the original covenantor and against anyone deriving title from them, so the parties to a variation deed may include successors in title, mortgagees and, where the obligation binds part of the land, the owner of that part.

Under the application route, the person against whom the obligation is enforceable applies to the authority after the relevant period. The authority may determine that the obligation shall continue without modification, that it no longer serves a useful purpose and 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.

That third option is the one to understand. The test is not whether the modification is reasonable or whether circumstances have changed. It is whether the modified obligation serves the original purpose equally well.

Varying by agreement

The agreement route is unrestricted in time and unrestricted in substance. Parties can agree almost any variation, including one that makes the obligation more onerous, provided it still meets the statutory tests for planning obligations and the tests in regulation 122 of the Community Infrastructure Levy Regulations 2010: necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind.

Authorities apply those tests at variation as well as at grant, so a request to remove a contribution will be tested against whether the contribution was ever properly required. That cuts both ways in negotiation.

The practical constraint is not law, it is signatures. Getting a mortgagee to execute a deed of variation takes weeks and sometimes months, and a lender that has taken security since the original agreement may take a commercial view on the change. Identify every party who has to execute the deed at the start, not when the draft is agreed.

The five year rule and the application route

Where the authority will not agree, the statutory application becomes available once five years have passed since the obligation was entered into. Note the trigger: the date of the deed, not the date of the permission, not first implementation, and not the date of a later variation of the same deed.

The procedure is set by the 1992 regulations governing modification and discharge of planning obligations. The applicant serves notice on the other parties and applies to the authority, which has a determination period after which a failure to determine is treated as a refusal for appeal purposes.

The strongest application on this route is one arguing that the obligation no longer serves a useful purpose. Contributions towards infrastructure that has since been built by someone else, restrictions tied to a use that no longer exists, and obligations superseded by a later consent regime are the recognisable cases. An application arguing that the obligation is now expensive is not the same argument and generally fails.

Appealing a refusal

Section 106B provides a right of appeal to the Secretary of State against a determination that the obligation shall continue without modification, and against a failure to determine within the period.

The appeal is determined on the same statutory test, so it is not a second bite at whether the obligation was ever justified. Appeals under this section are uncommon, and they are useful mainly where the authority has taken a position it cannot defend on the statutory wording rather than on the merits.

Where the real objection is to a condition rather than to an obligation, the instrument is different. Conditions are varied under section 73, and that produces a new permission, which raises the sequencing problem below.

The section 73 trap

This is the point that causes most trouble in practice, and it has nothing to do with section 106A itself.

A section 73 permission is a new planning permission. The original obligation is usually drafted to bind development carried out under the original permission, identified by its reference number. Implement the section 73 permission instead, and the obligation may not bite at all, which sounds attractive and is not, because the authority will notice and will refuse to issue the decision until a supplemental deed is in place.

So the sequencing is: agree the section 73 amendment and the deed of variation together, and draft the deed so the obligation attaches to the original permission, the section 73 permission and any future section 73 permission derived from either. Authorities increasingly ask for that wording as standard, and applicants should offer it rather than wait to be asked.

Affordable housing variations in practice

The commonest subject of a variation deed is affordable housing, and the commonest requests are a change of tenure mix, a change of the trigger for delivery, a change in the registered provider named, or a reduction in the quantum on viability grounds.

Tenure and trigger changes are usually straightforward where the registered provider supports them. Quantum reductions are not, and they require a viability case that the authority can test independently, normally at the applicant's expense. The temporary statutory procedure for modifying affordable housing requirements on viability grounds, introduced in 2013, has lapsed, so such changes now go through section 106A by agreement or through a fresh application.

An illustrative example. A consented scheme of 60 dwellings has an obligation requiring 18 affordable homes with a named tenure split, delivered before occupation of the 40th market unit. The registered provider withdraws. The developer agrees a variation that keeps the number and the trigger, changes the tenure split to match a replacement provider's requirements, and adds a cascade allowing a commuted sum if no provider can be found within a stated period. The authority accepts it because the planning purpose is served equally well. A request to cut the number to 12 would have been a different negotiation entirely, tested against a Viability Assessment and, in most authorities, an independent review.

Where a cascade to payment is agreed, the mechanism for calculating it should be set out in the deed rather than left to later agreement, and the way those payments are calculated is covered in what a commuted sum means in planning.

Costs, timescales and drafting

Expect to pay the authority's legal costs, and expect an undertaking for those costs before drafting starts. Budget for the applicant's own solicitor, for any independent viability review, and for mortgagee consent fees.

On timescale, three to six months from instruction to completion is a realistic range for an uncontested variation with a cooperative lender. Add time where land has been sold in parts, because every owner of a burdened parcel may need to join in.

For the drafting itself, cover the following.

1. Identify the original deed precisely by date, parties and title numbers, and recite the chain of title since.
2. Confirm that every person against whom the obligation is enforceable is a party, including mortgagees.
3. State whether the variation applies to the original permission only, or to section 73 permissions derived from it.
4. Amend the defined terms rather than bolting a new clause onto an unamended definition.
5. Deal expressly with obligations already performed, so a varied trigger does not revive a discharged requirement.
6. Provide for registration as a local land charge and for notification to the authority's monitoring officer.

Then check the varied obligation against the affordable housing policy position in the Affordable Housing Statement submitted with the original application, because officers will, and an inconsistency there is what turns a three month variation into a nine month one.

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.