Registering a planning obligation as a local land charge

A section 106 agreement binds the land, not the developer who signed it, and under section 106(11) of the Town and Country Planning Act 1990 it is a local land charge. So a section 106 local land charge will show up on a search against the property, which tells a buyer that an obligation exists. What the search will not tell them is whether it has been complied with, and that gap is where most pre-contract problems start.

How an obligation binds successors in title

Section 106(3) makes a planning obligation enforceable against the person who entered into it and against anyone deriving title from that person. That is why an obligation survives a sale, a corporate restructure and an insolvency.

The exception is a personal obligation, drafted to bind only a named party. These exist, usually where a specific operator has promised something only they can deliver, and they are rare enough that you should not assume one without reading the deed.

Positive obligations and restrictions behave differently in practice even though both bind the land. A restriction preventing occupation until a road is built is self-policing, because the council can enforce by injunction and a buyer cannot occupy. A positive obligation to pay £240,000 on first occupation is a debt that follows the land, and if the original developer has gone, the current owner is the one the council asks.

Registration as a local land charge

The originating authority registers the obligation under the Local Land Charges Act 1975, and the register is the one searched as part of the usual conveyancing enquiries. Registration is not what makes the obligation binding, since section 106(3) does that, so an unregistered obligation is still enforceable.

HM Land Registry has been taking over local land charges registers from local authorities in phases, so for some areas the search is now against the national digital register and for others it remains with the council. Check which applies before assuming a nil result means anything.

Obligations are also commonly protected at HM Land Registry by a notice or a restriction on the title, particularly where the deed restricts disposals until something has been delivered. That is a separate entry from the local land charge and worth looking for independently.

The practical consequence of all this is that three different records can disagree. The local land charges register, the registered title and the council's own monitoring spreadsheet are maintained by different people at different times, and a buyer should look at all three rather than treating the cleanest one as the answer.

What a search reveals and what it leaves out

A local land charges search tells you an obligation exists and identifies the deed. It is a notification mechanism, not a compliance record.

So the search is step one. Step two is the deed, with every variation, and step three is a written statement from the council's monitoring officer.

Checking compliance before purchase

Ask the council directly. Most authorities keep a monitoring record of obligations, payments received and triggers met, funded through the monitoring fees charged on the agreement, and they will usually confirm the position in writing for a buyer or their solicitor.

Four things to establish.

1. Which obligations have been triggered, and when.
2. Which payments have been made, with amounts and dates, and whether indexation was applied correctly.
3. Whether any obligation is in breach, and whether the council has taken or threatened enforcement.
4. Whether anything remains outstanding that will be triggered by your intended use or works.

Indexation is the detail that catches people. Financial contributions are usually index-linked from the date of the agreement to the date of payment, and a sum calculated on the wrong base date can be materially wrong in either direction. Where the obligation includes an affordable housing requirement, read it against the consented scheme and the Affordable Housing Statement submitted with the application, because tenure splits and transfer mechanics are frequently where the drafting and the delivery diverge.

Obligations that have already been discharged

Compliance and discharge are different things. An obligation can be fully performed and still appear on the register, because removal of the entry depends on the authority updating it.

Formal modification or discharge runs through section 106A. It can be done by agreement between the authority and the person against whom the obligation is enforceable at any time. Otherwise an application can be made after five years from the date the obligation was entered into, on the basis that it no longer serves a useful purpose or should be modified, with a right of appeal to the Secretary of State under section 106B.

Where an obligation is being renegotiated on economic grounds, the evidence is an appraisal rather than an argument, and our notes on independent review of a viability appraisal and the Viability Assessment itself set out what that involves. Do not expect a council to accept a modification request without it.

Apportionment between plots

On a site built out in phases or sold in plots, the question is which part of the land carries which obligation. Well-drafted agreements deal with this directly, usually by apportioning financial contributions by unit or by area, and by releasing individual dwellings once sold to an owner-occupier.

Those release provisions matter more than almost anything else in the deed for a buyer of a single house. A standard clause excludes individual dwellings and their mortgagees from the obligations once sold, which is why most homeowners never hear about the agreement again.

Where no apportionment or release provision exists, each part of the land can in principle carry the whole obligation, and the authority can choose whom to pursue. A buyer taking part of a site in that situation needs either a deed of release, a variation, or an indemnity from the seller that is worth something.

The questions to put to the seller

Ask for the agreement and every variation, in full, rather than a summary. Ask for the schedule of payments made, with receipts and the indexation calculation. Ask for written confirmation from the council of the current compliance position, dated recently.

Then ask the three questions sellers least like. Is any obligation currently in breach. Has the council raised any monitoring query in the last three years. And does anything become payable on the event you are about to carry out, such as first occupation of a particular unit or the start of a phase.

One more point on timing. Monitoring records are usually held by a single officer, and a request that arrives in the week before exchange will not be answered in time, so raise it at the start of the enquiries rather than at the end.

An obligation you know about is a priced risk. One you find after completion is a loss. Browse all 66 PlanScope report types if you are assembling the evidence for a variation application.

This is general guidance, not legal advice, and you should take advice from a qualified professional on any specific agreement 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.