Reading a section 106 agreement on the register
A section 106 binds the land, not the developer who signed it. Here is where agreements are published, what the exclusion clauses mean for a purchaser, and how to check what has actually been paid.
A section 106 agreement binds the land, not the developer who signed it, so if you are buying a converted building or a plot with a permission attached, the agreement is a document you have to read in full rather than summarise from the decision notice. Most are published on the council's planning register alongside the application they relate to, and most also appear as a local land charge, which is what a conveyancing search picks up. The two routes find different things, and you want both.
What matters in the document is narrower than its length suggests: who is bound, which land is bound, what triggers each obligation, and whether anything has already been performed.
Where agreements are actually published
Start with the application file on the council's planning register. Agreements are usually uploaded as a document type called legal agreement, section 106, unilateral undertaking or deed, and they often appear weeks after the decision notice, so a file checked on the day of the decision may not show it.
Many authorities also keep a separate planning obligations register or monitoring schedule listing agreements by site with the contributions and their status. That is the more useful document when you want to know whether a sum has been paid, and it is usually held by a monitoring officer rather than by the case officer.
Two practical notes. Deeds of variation are separate documents and are sometimes filed against a later application rather than the original, so search by address as well as by application reference. And a unilateral undertaking given by the applicant alone is just as binding as a bilateral agreement, while being easier to miss because it may not be described as an agreement at all.
The searches that reveal one
A planning obligation is registrable as a local land charge, so a local land charges search should disclose it. That search tells you the charge exists. It does not tell you what the obligations say, whether they have been performed, or how much is outstanding.
The standard enquiries of the local authority cover planning history and, depending on the form used, may reveal an agreement. Ask specifically for copies of any planning obligation and any deed of variation affecting the land, and ask whether any sums remain outstanding.
Check the title at the land registry as well. An obligation may be reflected in a restriction or a notice, and any separate restrictive covenant or mortgagee consent arrangement will show there rather than in the planning file. The same habit of going to the definitive record rather than a summary applies here as it does when checking the definitive map for a public right of way.
Parties, land bound and successors in title
Read the parties clause and the land definition together, with the plan.
The land bound is defined by reference to a plan, and it is frequently not the whole of the site you are buying. On a phased scheme the agreement may bind only the land within a named phase, and on a site sold in parcels the obligations may have been apportioned by a deed of variation.
Then check who is bound and who is expressly not. Standard exclusion clauses are near universal and they matter enormously to an individual purchaser.
- Individual purchasers or occupiers of a single completed dwelling, and their mortgagees, are commonly excluded from the covenants
- Statutory undertakers taking land for infrastructure are commonly excluded
- Mortgagees are often excluded until they take possession, with a separate clause governing what happens if they do
- Management companies may be joined for specific ongoing obligations
If you are buying a completed flat, the exclusion usually protects you from the development obligations while leaving occupancy restrictions in place. If you are buying a part-built site or a plot, you are stepping into the obligations and need the full picture.
Financial contributions and indexation
Take each contribution and note four things: the amount, the index and base date, the payment trigger, and whether it has been paid.
Indexation is where the arithmetic surprises people. A contribution of £80,000 agreed several years ago, indexed to a construction cost index from a base date earlier than the agreement, can be materially higher by the time it falls due. Ask the authority for its calculation rather than doing your own, then check it.
Payment triggers are the other trap. A trigger expressed as before first occupation of the tenth dwelling is clear. A trigger expressed as before implementation, without a definition excluding site clearance, may already have been breached by works carried out by a previous owner, which is a liability you inherit with the land.
Separately, check the community infrastructure levy position, which is not part of the agreement at all. Levy liability attaches to the land, unpaid levy is recoverable against it, and self-build or extension exemptions can be lost by a transfer or by a failure to file the right notices before works start. A clean section 106 position with an unresolved levy liability is still a problem.
Occupancy and tenure restrictions
For an investor these are usually the clauses that decide whether the deal works.
| Clause type | What it typically restricts |
|---|---|
| Affordable housing covenants | Tenure, nominations to the authority, rent levels, and who may occupy |
| Age or local connection restrictions | Occupation limited to people meeting defined criteria |
| Principal residence or holiday occupancy clauses | Use as a main home, or a prohibition on permanent occupation |
| Student occupancy restrictions | Occupation limited to students of a named institution or in general |
| Car-free or permit-free clauses | Residents prevented from applying for on-street parking permits |
| Restrictions on subdivision | Prohibition on creating additional units without further consent |
Illustrative example: a block of flats where the agreement includes a car-free clause and an obligation on the owner to notify incoming occupiers of it. The flats let perfectly well, and the landlord who did not read the clause finds out about it when a tenant is refused a parking permit and asks why. The obligation to notify sits with the owner, not the council.
Read the affordable housing schedule even where you are buying the market units, because nomination arrangements, mortgagee protection provisions and restrictions on disposal can affect the management of the whole building.
Checking whether obligations have been discharged
The agreement tells you what is owed. Only the authority can tell you what has been paid.
- Ask the monitoring officer in writing for a statement of the position on each obligation
- Look for a compliance certificate or a letter confirming discharge on the application file
- Check for a deed of variation or a deed of release, which may have removed or altered obligations
- Look at the conditions discharge applications on the register, since these often evidence performance of related obligations
- Where a sum is said to be paid, ask for the date and the amount, so you can test it against the indexation
Do not rely on the seller's summary. A statement that all section 106 obligations have been satisfied is common in sales particulars and is often based on the developer's recollection rather than on a written confirmation.
Modifying or discharging an obligation
Obligations can be modified or discharged by agreement with the authority at any time. Failing agreement, there is a statutory route to apply to the authority to modify or discharge an obligation once five years have passed from the date it was entered into, with a right of appeal.
That route is slower and less certain than negotiation, and it is generally used where an obligation no longer serves a useful purpose. Do not buy on the assumption that an inconvenient obligation will be removed, and price the risk instead. Treat it as one of several enquiries to make early, alongside ordering sewer records before development.
Due diligence before you exchange
Order the local land charges search and the standard local authority enquiries, then ask separately for copies of every agreement, unilateral undertaking and deed of variation affecting the land. Get the plans and compare them against the title plan, since a mismatch between the two is common and is worth resolving before completion rather than afterwards.
Read the decision notice and the agreement together, because conditions and obligations frequently cover overlapping ground and the drafting sometimes assumes the other document says something it does not. Where a permission has not yet been implemented and you intend to rely on it, a Planning Statement setting out the position is useful for your own funders as much as for the council.
This is general guidance, not legal advice; take advice from a qualified professional on any specific agreement and on the title before relying on it.
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Frequently asked questions
Where can I find a section 106 agreement?
On the council's planning register against the application it relates to, usually filed as a legal agreement or deed and often uploaded weeks after the decision notice. Many authorities also keep a separate planning obligations register or monitoring schedule, which is the better source for whether contributions have been paid.
Will a local search show a section 106?
A planning obligation is registrable as a local land charge, so a local land charges search should disclose that one exists. It will not tell you what the obligations say, whether they have been performed, or how much remains outstanding. Ask separately for copies of the agreement and any deed of variation.
Am I bound if I buy a single completed flat?
Usually not by the development obligations, because agreements almost always exclude individual purchasers and occupiers of a completed dwelling and their mortgagees. Occupancy restrictions, car-free clauses and similar covenants generally still apply, and some place a positive duty on the owner to notify incoming occupiers.
How do I check whether contributions have been paid?
Ask the authority's monitoring officer in writing for a statement on each obligation, and look for a compliance certificate, a deed of release or correspondence on the application file. Do not rely on a statement in sales particulars, which is often based on recollection rather than written confirmation from the council.
Does the community infrastructure levy appear in the agreement?
No, it is a separate regime. Levy liability attaches to the land and unpaid levy is recoverable against it, and exemptions such as self-build can be lost through a transfer or a failure to file the right notices before works begin. Check the levy position independently of the agreement.
Can an inconvenient obligation be removed?
It can be modified or discharged by agreement with the authority at any time, and there is a statutory route to apply once five years have passed from the date the obligation was entered into, with a right of appeal. That route is slow and uncertain, so price the risk rather than assuming removal.
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.