Section 106 deeds of variation and what they cost
Varying a section 106 agreement is rarely difficult in principle and often slow in practice. The delay and the cost usually come from the parties who have to sign, not from the council.
A section 106 deed of variation cost has two components that behave differently: legal fees, which are predictable if you ask early, and delay, which is not. Before five years have passed from the date an obligation was entered into, the only route is agreement between the council and everyone bound by it. After five years, there is a statutory application route with a right of appeal. That distinction sets everything else.
Most variations fail to complete on programme because a mortgagee's solicitor has not replied, not because the council disagreed with the planning merits.
When a variation is needed rather than a new agreement
Three situations generate most of the work.
The first is a section 73 application. A permission granted under section 73 is a new planning permission, so an obligation tied to the original permission may not bind the new one. The usual fix is a deed of variation or a supplemental deed that expressly applies the obligations to the new permission, and councils will normally hold the section 73 decision until it is completed.
The second is a change in the scheme that makes an obligation unworkable, such as a revised layout that moves the land intended for a play area, or a change in unit mix that alters the tenure split behind the Affordable Housing Statement.
The third is a viability argument, where the developer says the package agreed is no longer deliverable. That is the hardest one, because the council is being asked to give up something it has already secured, and it will want a Viability Assessment prepared to recognised standards and an open-book review at the applicant's expense.
Where the change is small and the original agreement contemplated it, check the agreement first. Many include a mechanism allowing details to be approved by the council in writing, which avoids a deed entirely.
The five year rule and the statutory route
Section 106A of the Town and Country Planning Act 1990 allows a planning obligation to be modified or discharged at any time by agreement between the authority and the person against whom it is enforceable. That is the deed of variation, and it is available immediately.
Separately, once five years have elapsed from the date the obligation was entered into, a person against whom it is enforceable may apply to the authority to have it modified or discharged. The grounds are that the obligation no longer serves a useful purpose, or that it continues to serve a useful purpose only if modified. If the authority refuses or does not determine the application, section 106B gives a right of appeal to the Secretary of State.
Before the five years are up there is no application route and no appeal. You are negotiating, and the council can simply decline. That asymmetry is worth understanding before you plan a scheme around a variation that has not been agreed.
A unilateral undertaking is still a planning obligation for these purposes, so the same framework applies, although the mechanics of varying one differ because the council was never a party to it.
Legal costs on both sides and who bears them
The council will require an undertaking to pay its legal costs before its solicitor opens the file, and that undertaking is usually unconditional, meaning it survives the variation not completing.
Ask three questions at the outset. Does the authority work to a published scale or an hourly rate. Is there a cap, and if so what happens if the matter exceeds it. Are county council or other authority costs separate, which they will be where education or highways obligations are involved and a second authority is a party.
On your own side, budget for your solicitor, the Land Registry fees for registering the deed against each affected title, and a local land charges entry. Where the site has been part-sold, every registered title carrying the obligation needs dealing with, and the fee scales with the number of titles rather than with the size of the change.
Councils also charge monitoring fees on obligations, and a variation is a sensible moment to check what is being monitored and whether the fee still matches. Treat it as another line in the development budget, alongside items such as utility connection costs.
Parties who must join the deed
This is where programmes slip. Everyone with an interest in the land that is bound by the obligation, or whose interest would otherwise defeat it, needs to be a party.
- The current freehold owner of every part of the land, including any parcels sold since the original agreement.
- Any leaseholder whose interest is bound.
- Every mortgagee or chargeholder over any part of the land.
- The local planning authority, and any other authority that was a party, typically a county council for education, highways or libraries.
- Occasionally a management company or a registered provider where affordable housing has already transferred.
Start by ordering official copies of every title in the red line on the day you decide to vary. The register tells you who the chargeholders are, and that list is the critical path.
Mortgagee consent and the delay it causes
A lender joins a deed of variation to confirm that its charge is subject to the varied obligation, so that the obligation survives a sale by the lender following default.
Lenders are not quick. The request goes to a securities team, then to external solicitors, and the lender will charge its own legal costs to the borrower. On a development with several funders, or a site where units have been sold to individual purchasers with their own mortgages, the exercise can become impractical, which is sometimes a reason to structure the change differently.
Two practical moves shorten this. Send the draft deed to the lender's solicitors at the same time you send it to the council rather than sequentially. And identify at the outset any chargeholder whose consent is not in fact needed because their interest postdates and is expressly subject to the obligation, then get that position confirmed in writing rather than assumed.
Registration and local land charge updates
A completed deed is not the end of the job. It needs to be registered against every affected registered title and entered in the local land charges register, and someone has to check that it has been.
Ask the council to confirm the local land charges entry has been updated, and obtain updated official copies showing the deed noted. A purchaser's solicitor two years later will find the original obligation and no record of the variation, and the transaction will stop while it is sorted out.
Keep a single file containing the original agreement, every variation, the plan attached to each, and the registration evidence. It is a small discipline that avoids an expensive search later.
Sequencing a variation with a section 73 application
Run the two in parallel and the programme works. Run them in sequence and the section 73 permission sits undetermined while the deed circulates.
- Submit the section 73 application and, in the covering letter, say that a deed of variation will be offered and identify the parties.
- Order official copies and write to every chargeholder in the same week.
- Ask the council for its costs undertaking form and its preferred draft on day one.
- Circulate a draft deed for comment while the application is being consulted on.
- Agree the form of deed before the officer report is written, so the recommendation can be to grant subject to completion.
- Complete, then register, then chase the local land charges entry.
The most common failure is step two happening in week ten. There is no way to recover those weeks, because a lender's timetable is not something the developer or the council controls.
PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval, and legal drafting of planning obligations sits with a solicitor rather than with any drafting tool. This is general guidance rather than legal advice, so take advice before relying on it. Report drafting costs are published at PlanScope pricing.
Frequently asked questions
Can I vary a section 106 agreement at any time?
By agreement, yes. Section 106A allows an obligation to be modified or discharged at any time by agreement between the authority and the person against whom it is enforceable. What you cannot do before five years have elapsed is apply to the authority and appeal a refusal, because that statutory route only opens once the obligation is five years old.
Who has to sign a deed of variation?
Every freehold owner of the land bound, any leaseholder whose interest is bound, every mortgagee or chargeholder, the local planning authority, and any other authority that was a party such as a county council. Order official copies of every title at the outset, because the list of chargeholders is what determines the programme.
Why does mortgagee consent take so long?
The request travels from a securities team to external solicitors, and the lender charges its own legal costs to the borrower. Where several funders are involved, or units have been sold to purchasers with individual mortgages, the exercise can become impractical. Send the draft to lenders in parallel with the council rather than afterwards.
Do I need a deed of variation for a section 73 permission?
Usually yes. A section 73 permission is a new permission, so obligations tied to the original one may not bind it. A deed of variation or supplemental deed expressly applying the obligations to the new permission solves that, and councils generally hold the section 73 decision until it has been completed.
What happens if nobody registers the completed deed?
A purchaser's solicitor finds the original obligation with no record of the variation, and the transaction stops while it is investigated. Register the deed against every affected title, ask the council to confirm the local land charges entry has been updated, and obtain updated official copies showing the deed noted.
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.