Varying a planning obligation after five years

Five years after a section 106 agreement is signed, a statutory route opens that does not depend on the council's goodwill. Section 106A of the Town and Country Planning Act 1990 lets any person against whom a planning obligation is enforceable apply to the local planning authority to have it modified or discharged, and if the authority refuses or sits on the application there is an appeal to the Secretary of State under section 106B. Before those five years are up your only route is agreement, which means persuading the authority to sign a deed of variation.

That distinction decides your strategy. If the obligation was completed four years ago and the council will not engage, you wait or you negotiate. If it was completed six years ago, you have a determination the council has to make and an appeal if it gets it wrong.

The two routes side by side

The relevant period is five years unless something else is prescribed, and it runs from the date the obligation was entered into rather than from the date the permission was granted or the development began. Dig out the executed deed and look at the date on the front, because on a scheme where the agreement was signed a year before the permission issued, that year is to your advantage.

The three outcomes

Section 106A sets out what the authority may determine, and the list is closed. It can decide that the obligation no longer serves a useful purpose, in which case it is discharged. It can decide that the obligation continues to serve a useful purpose but would serve that purpose equally well if modified in the way the applicant specifies, in which case it is modified as specified. Or it can decide that the obligation shall continue to have effect without modification.

Two consequences follow that practitioners underuse.

The first is that the authority cannot invent a different modification. If it thinks your proposed wording goes too far but a narrower change would be acceptable, its only options are to modify exactly as you asked or to refuse. So specify the modification you want with precision, in the words you want the deed to read, and consider making a second application in the alternative rather than inviting a negotiation the statute does not allow.

The second is that "no longer serves a useful purpose" is a high bar and is about purpose rather than about burden. An obligation that has become expensive still serves its purpose. An obligation to contribute towards a leisure centre that was never built and is no longer in the authority's capital programme may not. An obligation requiring a travel plan for a use that has ceased may not. The further analysis of that ground sits in the piece on discharging a section 106 obligation that no longer serves a purpose.

Evidence the authority will want

The application is not a letter. Treat it as a planning submission with a proof attached to every assertion.

• The executed deed and every subsequent variation, with the obligation you want changed identified by clause number.
• The planning permission the obligation relates to, and its conditions, so the authority can see what the obligation was securing.
• A statement of what has changed since the agreement was signed, dated and evidenced: a superseded local plan policy, a facility built elsewhere, a closed school, a contribution the authority has not spent within the time limit in the deed, a change in national policy.
• For a financial contribution, the authority's own infrastructure funding statement showing whether the money was pooled, allocated or returned.
• Where affordable housing is the obligation, a viability case. The Viability Assessment needs to follow the approach in the national viability guidance and the relevant professional standard, and councils expect a suitably qualified author, so professional review is strongly advised before it goes in.
• Where the obligation secured tenure or mix, the current position of a registered provider in writing, because an assertion that nobody will take the units is worth little without a letter.

And be straight about why you want the change. An application that says the obligation no longer serves a useful purpose, when the real position is that the scheme is no longer profitable with it, will be refused and will damage the negotiation that follows. Viability is a legitimate argument in the right place, which is a request to modify rather than discharge, supported by a proper appraisal.

Appealing under section 106B

If the authority refuses, or fails to determine the application within the prescribed period set by the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992, there is an appeal to the Secretary of State. The appeal is normally dealt with by written representations and is decided by an inspector on the same statutory grounds, so it is not an opportunity to broaden the case.

Three points to keep in mind. The appeal tests the modification you applied for, not an improved version of it, which is another reason to get the drafting right first time. The inspector can modify or discharge, and can also decide the obligation continues unchanged. And where viability is the substance of the argument, the appraisal will be examined properly, which is covered further in the article on when an inspector reopens viability at appeal.

The temporary affordable housing modification route that briefly existed in sections 106BA to 106BC no longer applies, so do not rely on any guidance that refers to it.

Agreeing a variation by deed instead

Most variations happen by agreement, and for good reason. A deed of variation can do things a statutory application cannot: change the trigger points, add a phasing schedule, substitute a different obligation, release part of the land, or restate the whole agreement in cleaner language.

What it needs in practice:

1. Every person bound by the obligation, which means the current freeholder, any leaseholder whose interest is bound, and usually the mortgagee, since a lender will want to consent to anything that affects the security.
2. The authority's agreement to the principle, usually through a report to a delegated officer or to committee, which takes weeks rather than days.
3. An undertaking for the authority's legal costs, and often a monitoring fee, both of which are charged under the authority's published scale.
4. A land registry application to note the variation against each affected title, which is the step people forget and the step a buyer's solicitor will find.

Where the variation accompanies a change to the scheme, remember that a permission granted under section 73 is a new permission, and whether the original obligation reaches it depends on how the deed was drafted. The point is covered in the piece on whether section 106 obligations carry over to a section 73 permission.

What a variation does not do

Modifying or discharging an obligation changes the obligation and nothing else. The planning permission stands, the conditions stand, and if a condition requires the same thing as the obligation you have solved half the problem. Check for the overlap before you spend anything, because a condition requiring 30 per cent affordable housing survives the discharge of the obligation that also required it.

Nor can section 106A be used to authorise development the permission does not allow, or to add an obligation. It modifies or discharges what is there.

Sequencing against a sale

Obligations bind the land and run with it, so a buyer takes the burden. On a disposal the practical order of events matters more than the law.

If the variation is a condition of the deal, get the authority's agreement in principle in writing before exchange, and make completion of the deed a condition of the sale rather than a hope. If you are relying on the statutory route, start it before marketing, because an eight week determination period plus an appeal is not something a buyer will wait through. And if the five year period has not expired, say so in the data room rather than letting the buyer's solicitor find it, because the discovery is worth more off the price than the obligation itself.

For an investor buying a site with an unattractive obligation, the date on the front of the deed is the first thing to check. It tells you which route is available and roughly how long the problem takes to fix.

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. To see which supporting documents a scheme is likely to need, enter your postcode on PlanScope.