Reading a section 106 agreement as a resident

A section 106 agreement is a deed, and like any deed it is read from the schedules backwards. The recitals and definitions at the front tell you who is bound. The schedules at the back tell you what they have promised, when it is triggered and what happens if they do not do it. Residents who want to know whether the promised play area will actually be built should start at the schedule covering open space and work out which trigger releases it.

Every agreement is on the public record. Councils publish them on the planning application file, usually as a scanned deed with the signature pages redacted, and they are also registered as local land charges against the land.

Where agreements are published

The decision notice is the starting point. It names the agreement, gives its date and usually says the permission was granted subject to a section 106 agreement of that date. Search the application reference on the council's planning register and the deed should be among the documents, sometimes filed under a later date than the decision because it was completed first and uploaded afterwards.

If it is not there, ask. Councils hold these as environmental information and the Environmental Information Regulations 2004 give a right of access with a 20 working day response period. A local land charges search against the land will also reveal the obligation, which is the route conveyancers use.

Deeds of variation matter as much as the original. An agreement signed in 2019 and varied twice by 2024 is three documents, and only the variations tell you what is currently owed. Following an application through the public register is the same skill applied to a live case.

How to read the schedules and triggers

The structure is consistent across most authorities. Parties, recitals, definitions, a clause confirming the obligations are planning obligations under section 106 of the Town and Country Planning Act 1990, then one schedule per subject: affordable housing, education, open space, highways, travel plan, health, monitoring.

Inside each schedule, three things matter. The obligation itself, written as a covenant. The trigger, which is the event that makes it due. And the measure, which is either a sum of money, an area of land, a number of units or a specification.

Triggers are where expectations and reality part company. Common wordings:

• Before commencement of development, which means the obligation is due before any material operation starts on site
• Prior to first occupation of the development, which can be years after commencement
• Prior to occupation of the 50th dwelling, which on a slow-selling site can be very late indeed
• Within 28 days of a written demand from the council, which puts the timing in the council's hands
• On practical completion of the works, which depends on a certificate issued by someone else

A play area triggered on occupation of the final dwelling in a phased scheme can sit unbuilt for a decade while the site is lawfully occupied. That is not a breach. It is the agreement working as drafted, and it is the single most common source of local frustration.

Contributions, in kind provision and indexation

Financial contributions are sums paid to the council for a stated purpose. In kind provision is the developer building or transferring something instead, such as the affordable units themselves, a serviced site for a school, or an area of open space transferred to a management company.

Most financial contributions are indexed, so the figure in the deed is not the figure that gets paid. Agreements typically link sums to a published construction cost or retail price index from the date of the agreement to the date of payment. The deed will name the index and the base date. A contribution agreed years ago may be substantially higher by the time it falls due, and occasionally the indexation clause is the only reason the money still covers the works.

Watch for three other clauses. Mortgagee protection, which limits what a lender has to do if it repossesses, and which can reduce affordable housing obligations in practice. Spending deadlines, often five or ten years, after which unspent money is repayable to the developer with interest. And clauses tying obligations to a specific permission, which means a later permission for the same site may not carry them.

Who enforces the obligations

The local planning authority. Section 106 obligations are enforceable by injunction against the person against whom they are enforceable, and the authority may enter the land, carry out the works itself and recover the cost where an obligation to do works is breached. Those powers are real and rarely used, because enforcement costs money the authority has not budgeted.

Residents cannot enforce an agreement directly. What they can do is make the position awkward: write to the planning enforcement team with the clause reference and the evidence, copy the ward councillor, and ask at full council or the relevant scrutiny committee what the authority intends to do, within the limits that the rules on predetermination place on what a councillor may say in reply. A clause reference and a date carries far more weight than a general complaint that the developer has not built the park.

Obligations also bind successors in title, so a site sold on carries the burden with it. The new owner's solicitor will have seen the land charge.

Infrastructure funding statements

Since December 2020 authorities that receive contributions have had to publish an annual infrastructure funding statement, by 31 December each year, covering the preceding financial year. It reports what was agreed, what was received, what was spent and on what, and what remains unspent.

That document is how a resident finds out whether the education contribution from the estate down the road was ever collected. It is published on the council's website, usually alongside the local plan monitoring report, and the data is also collected nationally. The statement is a summary rather than a transaction list, so a specific question usually needs a follow-up request.

Read it alongside the committee reports for the schemes it covers, because the two together show whether a contribution was collected on the trigger the deed set.

Asking what happened to a contribution

Write to the council with the application reference, the date of the agreement, the schedule and clause, and the amount. Ask four questions: has the trigger occurred, was the sum received, has it been spent and on what, and if unspent, what is the spending deadline. Frame it as a request under the Environmental Information Regulations 2004 and you get a statutory deadline rather than a courtesy reply.

Where money was received and the spending deadline has passed, the answer may be that it was returned to the developer. That is lawful and it is also the kind of fact that changes a local conversation.

Where an obligation has been varied

Section 106A allows an obligation to be modified or discharged by agreement between the authority and the person bound at any time. After five years from the date of the agreement, the person bound can apply to the authority to modify or discharge it, and there is a right of appeal to the Secretary of State under section 106B if the authority refuses.

Variations are often sought on viability grounds, and an authority that accepts a reduced affordable housing provision has to be satisfied the case is made. Where that happens the viability evidence is usually published alongside the committee report, and it is open to challenge in the consultation. The policy framework for all of this sits in the planning obligations guidance, and the three tests in the Community Infrastructure Levy Regulations 2010 still apply: an obligation must be necessary to make the development acceptable, directly related to it, and fairly and reasonably related in scale and kind.

Those tests are the ones to use when a request looks excessive, and the ones a resident can point to when a contribution looks far too small for what the development will cost the area. Getting involved before applications are submitted is still where the heads of terms are easiest to influence.

This is general guidance, not legal advice. Agreements differ, and the wording of the one you are reading governs, so take advice from a qualified professional before relying on an interpretation.