Submitting a section 106 obligation during an appeal
Where a refusal reason turns on the absence of a planning obligation, the appeal needs a completed unilateral undertaking before the Inspectorate's deadline. The vehicle, the tests and the drafting.
If your refusal reason includes the absence of a planning obligation, the appeal will fail on that ground unless you put a completed obligation in front of the inspector. In practice that means a section 106 during appeal is delivered as a unilateral undertaking, executed as a deed by everyone with a legal interest in the land, and lodged before the deadline the Inspectorate sets. Late means ignored. An inspector who has closed the inquiry has no power to take account of a deed that arrives the following week.
Why obligations arrive late
Three situations produce almost all of them.
The first is a refusal where the council never engaged on heads of terms. Officers recommended refusal on other grounds, the obligation was never negotiated, and the reason for refusal simply records that no mechanism secures affordable housing or the contributions sought.
The second is a non-determination appeal. The eight or thirteen week period expires, the applicant appeals, and the council's draft agreement is nowhere near engrossment. Negotiating a bilateral deed with an authority that has lost control of the application is slow and often pointless.
The third is a change of position during the appeal. Viability evidence shifts, the council's statement of case raises a contribution nobody had costed, or the inspector's questions at a case management conference expose a gap in the mitigation package.
None of these are failures of planning judgement. They are a consequence of the obligation being the last thing anyone drafts.
Unilateral undertakings as the usual vehicle
Section 106(1) of the Town and Country Planning Act 1990 allows any person interested in land to enter into a planning obligation by agreement or otherwise. Those last two words are what make a unilateral undertaking possible. The council does not sign it and cannot block it.
That is the practical attraction. It also carries the obvious weakness, which is that the authority has not agreed the drafting and may tell the inspector that the undertaking does not do what it claims to do.
Execution needs care. Every freeholder and every leaseholder whose interest could defeat the obligation must be a covenantor, mortgagees need to be dealt with, and the deed should be dated and completed rather than left in agreed form. An undertaking signed by a developer with an option over land, where the freeholder is not a party, is worth very little.
The obligation binds the land and is registrable as a local land charge, so the council can enforce it against successors even though it never signed.
Deadlines for submission
The Inspectorate's procedural guidance sets the dates and they differ by route.
| Appeal route | When the completed obligation is needed |
|---|---|
| Written representations | With the appeal submission wherever possible, and no later than the final comments deadline |
| Hearing | Before the hearing opens, with a draft circulated at the statement stage |
| Inquiry | Signed, dated and complete before the inquiry closes, to the timetable the inspector sets at the case management conference |
| Householder and commercial fast track | Rare, but with the appeal form, because there is no later opportunity |
Two habits reduce the risk. Submit the draft early even when execution is weeks away, so the council can comment and the inspector knows it is coming. And ask the inspector for a specific date rather than assuming the general guidance applies, because inquiry timetables vary and a decision can be reached quickly once evidence closes.
Where a deed cannot be completed in time, the usual fallback is to invite the inspector to impose a Grampian condition instead. That works for some matters, such as highway works to be delivered under section 278 of the Highways Act 1980, and not at all for financial contributions.
The tests an inspector applies
An obligation only counts if it is lawful to take it into account. Regulation 122 of the Community Infrastructure Levy Regulations 2010 provides that a planning obligation may constitute a reason for granting permission only where it is necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to it.
Inspectors apply that test item by item, not to the undertaking as a whole. A deed with six obligations may pass on four and fail on two, and the ones that fail are disregarded rather than fatal.
The pooling restriction that once limited contributions to five obligations for a single infrastructure project was removed in 2019, so that argument no longer helps a council resist a contribution. What does still bite is the absence of an adopted policy or evidence base for the contribution sought. If the council cannot point to a plan policy, an SPD or a published formula, the obligation may be unnecessary, and offering it anyway is not always in your interest.
A short note on strategy. Offering more than the tests allow does not strengthen the case and can look like buying a permission, which is exactly what regulation 122 exists to prevent.
Drafting for an uncertain outcome
The appeal may be allowed, dismissed, or allowed on a different description of development than you applied for. The deed has to cope with all three.
- Make the obligations conditional on the appeal being allowed and on implementation of the permission, so a dismissal leaves the land unencumbered.
- Define the development by reference to the appeal reference and the drawing numbers before the inspector, not by a loose description.
- Tie triggers to events you control and can evidence: first occupation, completion of a stated number of units, or the date construction starts, rather than a calendar date that may pass during the appeal.
- Index financial contributions to a published index and state the base date, because an appeal decided a year after the deed is signed leaves the sum stale.
- Include a clause dealing with what happens if the inspector grants permission subject to a condition that conflicts with an obligation.
- Keep the affordable housing schedule separate and self-contained, so a viability finding can be reflected without redrafting the whole deed.
More than one undertaking for alternative outcomes
Where viability is in real dispute, submitting two undertakings is legitimate and inspectors deal with it regularly. One secures the policy-compliant provision, the other the reduced provision your appraisal supports, and each states that it takes effect only if the inspector reaches the corresponding conclusion.
The drafting must make the trigger unambiguous. An undertaking that takes effect if the inspector finds the scheme unviable invites argument about what the finding was. Better to tie it to the inspector granting permission without a requirement for more than a stated number of affordable units.
Set out the position in your statement of case as well, with a short table showing which deed applies on which finding. Inspectors have no appetite for untangling conditional deeds in the fortnight after an inquiry closes, and clarity here protects the whole package. Appeal decisions on comparable schemes can help you pitch it, as our guide to using appeal decisions in a planning application explains.
When it arrives too late
An inspector who receives an executed deed after the relevant deadline has a discretion, and the usual exercise of it is to disregard the document. Where the obligation was the only answer to a reason for refusal, the appeal is then dismissed on that ground, and the costs position can follow the applicant rather than the authority.
That outcome is avoidable and it is almost always a programming failure rather than a legal one. Instruct the solicitor when you lodge the appeal, not when the statement of case is due. Get the title checked early, because an unregistered strip or a forgotten mortgage is what delays execution.
A dismissal on this ground does not prevent a fresh application with the deed in place. It does cost you the appeal fee, the evidence spend and several months, and where the refusal came from a committee going against its own officers the delay stings more, a scenario covered in our piece on committee refusals against officer advice.
The policy case that sits alongside the deed belongs in the appeal statement and, at application stage, in a Planning Statement that addresses each reason for refusal in turn. Enter your postcode on PlanScope to see which supporting reports an appeal scheme is likely to need.
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.
Frequently asked questions
Does the council have to agree a unilateral undertaking?
No. Section 106(1) allows a person interested in the land to enter into an obligation by agreement or otherwise, and that second limb is what permits a unilateral deed. The council cannot block it, but it can tell the inspector the drafting does not achieve what it claims. Circulating a draft early reduces that risk considerably.
When must the obligation reach the inspector?
On written representations, with the appeal where possible and no later than the final comments deadline. At a hearing, before it opens. At an inquiry, signed and dated before the inquiry closes, to the timetable set at the case management conference. Ask the inspector to confirm a date rather than relying on the general guidance alone.
What happens if the appeal is dismissed after the deed is signed?
A properly drafted undertaking takes effect only on the appeal being allowed and on implementation of the resulting permission, so a dismissal leaves the land unencumbered. If the deed is unconditional, the obligations may bind the land regardless of the outcome, which is why the conditionality clause matters more than almost anything else in it.
Can a condition be used instead of an obligation?
Sometimes. A Grampian condition can secure works that have to happen before development proceeds, such as highway works delivered under section 278 of the Highways Act 1980. Conditions cannot require the payment of money, so financial contributions and affordable housing provision still need an obligation to secure them.
Is it worth submitting two undertakings for different viability findings?
Yes, where affordable housing provision is in dispute. One deed secures the policy-compliant provision and the other the level your appraisal supports, each taking effect on the corresponding finding. Tie the trigger to what the inspector grants rather than to a characterisation of the reasoning, which is open to argument later.
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.