Section 106A modification or a fresh planning agreement
A deed of variation is available at any time with no statutory test. A section 106A application waits five years but carries an appeal. Here is how the two compare in practice.
There are two ways to change a section 106 agreement, and the choice is usually made for you by whether the council will talk. A deed of variation is a negotiated agreement between the parties, available at any time, with no statutory test to satisfy. An application under section 106A of the Town and Country Planning Act 1990 is a formal route with a statutory test, available once the obligation is five years old, and it carries a right of appeal if the authority refuses.
Most variations happen by deed. The statutory route matters because it exists, and because the possibility of an appeal changes the tone of a negotiation that has stalled.
What section 106A allows
Section 106A provides that a planning obligation may be modified or discharged by agreement between the authority and the person against whom it is enforceable, or in accordance with the statutory application procedure.
Under that procedure, an application may be made after the relevant period, which is five years beginning with the date the obligation was entered into. The authority then has three possible determinations: that the obligation shall continue without modification, that it no longer serves a useful purpose and shall be discharged, or that it continues to serve a useful purpose but would serve that purpose equally well if modified as applied for.
Read that third limb carefully, because it is narrower than applicants want it to be. The question is not whether the obligation is onerous, or whether the scheme has become unviable. It is whether the modified obligation would serve the original purpose equally well. An application to halve an affordable housing requirement does not meet that test on its own terms, because a smaller contribution does not serve the affordable housing purpose equally well.
Where it does work is on obligations that have been overtaken by events: a contribution to a facility that was never built, a restriction tied to a use that no longer exists, an occupancy condition whose justification has gone.
The appeal that follows
If the authority refuses the application, or fails to determine it within the prescribed period, there is a right of appeal to the Secretary of State. The appeal is determined on the same statutory test, and the inspector can modify or discharge the obligation.
That right is the practical value of the statutory route. A negotiated deed has no appeal: if the council says no, the answer is no, and the only remaining options are litigation or a fresh planning application. Knowing that an appeal exists once the five years have run changes how an authority approaches a request it might otherwise simply decline.
Timing matters. The five-year clock runs from the date the obligation was entered into, not from the date of the permission or of implementation, and on a long-running scheme with a deed completed early in the process the period may already have passed without anyone noticing.
Negotiated variation by deed
A deed of variation is the ordinary route and it has real advantages: no five-year wait, no statutory test, and the parties can agree anything lawful.
The practical requirements catch people out. Every party with an interest in the land bound by the original agreement has to be joined, which normally includes any mortgagee, and obtaining a lender's consent can take longer than the council's decision. Where part of the site has been sold, the new owner has to be a party too.
Authorities charge their legal costs, and many charge a fee for officer time in considering the request. Budget for both, and ask for an estimate in writing before instructing solicitors. Section 106 monitoring fee or administration charge explains which charges are which.
There is also the question of what triggers the council's willingness to negotiate. A request framed as "this is unaffordable" invites scrutiny. A request framed as "here is a change in circumstances, here is the evidence, and here is an alternative that meets the same policy purpose" gets a different reception.
| Section 106A application | Deed of variation | |
|---|---|---|
| When available | After five years from the date of the obligation | Any time |
| Test applied | Statutory test on useful purpose | Whatever the parties agree |
| Right of appeal | Yes, to the Secretary of State | None |
| Parties required | Applicant and authority | All parties with an interest, including lenders |
| Typical use | Obligations overtaken by events | Commercial renegotiation |
Affordable housing renegotiation
This is where most requests originate and where the routes are least helpful.
There was, for a period, a dedicated statutory procedure for reviewing affordable housing requirements on viability grounds, with its own appeal. It was repealed, and anyone working from older guidance should check that before relying on it. What remains is the general section 106A route, whose test is difficult to satisfy for a pure viability argument, and negotiation.
So a viability-driven renegotiation is in practice a negotiation, supported by a Viability Assessment prepared to the recognised professional standard and submitted on the basis that it will be published. National guidance is clear that viability at the application stage should be the exception, and that the price paid for land is not a justification for failing to meet policy.
Expect the authority to require an independent review at your cost, and expect a late-stage review mechanism in the varied agreement so that any improvement in values is shared. An Affordable Housing Statement setting out what is proposed and why should accompany either route.
Evidence needed to modify
Whichever route you take, assemble the same material.
- The original agreement, every subsequent deed, and a schedule of what has been performed and what remains outstanding.
- Confirmation of the date the obligation was entered into, for the five-year calculation.
- Title information showing every party with an interest, and early contact with any mortgagee.
- A statement of the change in circumstances, evidenced rather than asserted.
- Where the purpose of an obligation has gone, evidence from the authority's own published material, such as an infrastructure funding statement showing a contribution unspent or a facility not delivered.
- Viability evidence where the argument is financial, prepared to professional standards and expected to be published.
The fifth item is the one that wins the statutory route. An authority's own record showing that a contribution sat unspent for years is a far stronger argument that the obligation no longer serves a useful purpose than any amount of commentary.
Timescales and costs
A deed of variation moves at the speed of the slowest solicitor, and three to six months is not unusual once lender consent is in the chain. A section 106A application has a prescribed determination period, with an appeal adding months on top.
Costs fall into three buckets: your own legal and professional fees, the authority's legal costs and any consideration fee, and the cost of any independent viability review. None of these are recoverable if the answer is no.
Choosing the route
If the obligation is under five years old, the deed is your only option and the negotiation is everything. If it is older and the authority has declined, the statutory application gives you a determination you can appeal, which is worth having even if you expect to settle.
If the underlying problem is that the whole scheme has changed, consider whether a fresh application under section 73 with a new agreement is cleaner than patching the old one. A Planning Statement explaining the change and its policy justification often does more work than the legal drafting.
This is general guidance, not legal advice. Check the position with your local planning authority or a qualified professional before relying on it.
Frequently asked questions
When can I apply under section 106A?
After the relevant period, which is five years beginning with the date the obligation was entered into. That is the date of the deed, not the date of the permission or of implementation, so on a long-running scheme the period may already have run. Before five years, a negotiated deed of variation is the only route.
What test does the council apply?
Whether the obligation continues to serve a useful purpose, and if so whether it would serve that purpose equally well if modified as applied for. That is narrower than viability. An application to reduce a contribution because the scheme has become expensive does not meet the test simply by being true.
Is there an appeal against refusal to vary?
Against a refusal of a section 106A application, or a failure to determine it, there is a right of appeal to the Secretary of State on the same statutory test. A negotiated deed of variation carries no appeal at all, so if the authority declines, the remaining options are a fresh application or litigation.
Can a section 106 agreement be varied to cut affordable housing?
Only by negotiation in practice. The dedicated statutory procedure that once existed for reviewing affordable housing on viability grounds was repealed, so check any older guidance before relying on it. Expect to submit a viability assessment prepared to professional standards, to fund an independent review, and to accept a late-stage review mechanism.
Who has to sign a deed of variation?
Every party with an interest in the land bound by the original agreement, which normally includes any mortgagee and any successor owner of part of the site. Lender consent is often the slowest part of the process, so start it before instructing solicitors on the drafting.
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.