Varying a planning obligation under section 106A

A section 106A deed of variation is the ordinary way to change a planning obligation, and it works only because both parties agree. Section 106A of the Town and Country Planning Act 1990 allows a planning obligation to be modified or discharged in two ways and no others: by agreement between the local planning authority and the person against whom the obligation is enforceable, executed as a deed, or by a statutory application that cannot be made until the relevant period has expired. In the absence of a prescribed period that is five years from the date the obligation was entered into.

So for the first five years of a scheme's life, the authority holds a veto. Practitioners who understand that negotiate differently.

When a variation is actually needed

Four situations account for most variations, and one of them surprises people who have not met it.

A trigger has become unworkable, usually because the phasing changed or an infrastructure provider's programme slipped. A contribution figure needs recalculating because floorspace or unit numbers changed. The affordable housing tenure or quantum needs to change, generally for viability or because no registered provider will take the mix. Or a section 73 permission has been granted.

That last one is the trap. A permission granted under section 73 of the 1990 Act is a new permission, and the obligation attached to the original permission does not automatically attach to it. Unless a deed of variation or a supplemental deed ties the obligation to the new permission, you can end up implementing a permission with no obligation, which sounds attractive until the authority refuses to discharge conditions or a purchaser's solicitor raises it on a title report. Authorities now usually require the supplemental deed as a condition of issuing the section 73 decision, but not all of them do, and the responsibility for checking sits with the applicant's side.

One more point: a planning obligation is a statutory creature rather than an ordinary restrictive covenant, so the route used to modify private covenants between landowners is generally not available. Sections 106A and 106B are the scheme.

Variation by agreement, the route almost everyone uses

Agreement under section 106A(1)(a) has no waiting period, no prescribed grounds and no prescribed procedure. The authority can agree to anything it could lawfully have required in the first place, which means the Regulation 122 tests in the Community Infrastructure Levy Regulations 2010 still frame what it can accept.

The practical sequence is predictable.

1. Write to the authority with the proposed change, the reason for it, and a draft of the varied clause rather than a description of the effect you want.
2. Agree the authority's legal costs undertaking, which they will want signed before any drafting starts.
3. Establish who has to be a party. Every person with an interest in the land bound by the obligation, plus any mortgagee whose consent the original deed required.
4. Settle the drafting, usually through the authority's external solicitors on a larger scheme.
5. Execute as a deed and get it registered as a local land charge.
6. Obtain a copy of the completed deed and keep it with the planning permission, because a purchaser's solicitor will ask.

Step three is where variations stall. Land that has been sold off in parcels since the original deed means multiple parties, and a single reluctant one can hold up the whole variation. Check the title before you promise a timetable to your client.

Fees and timescales vary enormously between authorities. Three months from first letter to executed deed is a reasonable expectation on a simple variation with one party. Six months is common where the authority's legal team is overloaded.

The statutory application route and the five year wait

Once the relevant period has expired, a person against whom the obligation is enforceable may apply to the authority for the obligation to be modified as specified in the application, or to be discharged. The procedural detail, including what the application must contain and how it is publicised, sits in the regulations made for the purpose, and those should be checked before diarising dates.

The statutory route has one advantage and several drawbacks. The advantage is that the authority must determine it and a refusal can be appealed. The drawbacks are the wait, the narrowness of the grounds, and the fact that the authority is not obliged to agree to the modification you want: it can decide the obligation continues without modification.

It is therefore a route for obligations that have outlived their purpose rather than a lever in a live negotiation. The classic candidate is an obligation securing something that has since been delivered another way, or an occupancy restriction attached to a use that no longer exists.

The grounds the authority has to apply

On a statutory application the authority has three possible answers, and the statutory language is tight.

It may discharge the obligation if it no longer serves a useful purpose. It may modify the obligation if it continues to serve a useful purpose but would serve that purpose equally well if modified in the way proposed. Or it may determine that the obligation shall continue to have effect without modification.

Read the middle test carefully, because it is the one most applications fail on. Equally well is a high bar. A modification that reduces a contribution, extends a trigger or relaxes a restriction will usually serve the purpose less well rather than equally well, however reasonable the commercial case. The test is not whether the modification is reasonable. It is whether the purpose survives intact.

That is why viability arguments belong in the agreement route and not in the statutory one.

Appeal rights where an application fails

Section 106B provides an appeal to the Secretary of State where an authority refuses an application under section 106A or fails to determine it in time. The appeal is dealt with by the Planning Inspectorate and the inspector applies the same statutory tests the authority had to apply.

Two points of practice. The appeal is on the statutory grounds, so new evidence about viability or commercial hardship does not improve a case that fails on useful purpose. And the inspector can modify the obligation in the terms applied for or confirm it unmodified, but cannot invent a different modification, so the drafting of the application defines the available outcome.

Get the proposed wording right at application stage. An appeal cannot fix a badly framed request.

Affordable housing variations and the scrutiny they attract

Between 2013 and 2016 there was a dedicated statutory route for modifying affordable housing obligations on viability grounds, with its own appeal. Those provisions have gone, and since then affordable housing variations have run on the ordinary routes.

In practice that means the agreement route, supported by a viability case. Expect the authority to instruct an independent review at your cost, and expect the review to be thorough, because members scrutinise reductions in affordable housing more closely than any other variation. The way a submission should be structured for that review is set out in the note on how to format a viability appraisal submission, and what the reviewer does with it is covered in the look at independent review of a viability appraisal.

Three things make these variations more likely to succeed. An open-book appraisal with the original appraisal alongside the current one, so the reviewer can see what changed. A change that is specific and evidenced, such as a named registered provider declining the tenure mix in writing. And an offer of a review mechanism so that improved values later restore some of the provision.

A tenure substitution that keeps the headline percentage intact is a far easier sell than a reduction in units, and the affordable housing statement should set out the revised mix in the same format as the original to make the comparison easy.

Drafting a variation that works

Vary the clause, do not restate the deed. A short supplemental deed that identifies the original obligation, names the clause being varied and sets out the replacement wording is easier to review, easier to register and easier for a future purchaser to follow than a wholesale restatement.

Then check five things before execution. That the recitals correctly identify the original deed by date and parties. That every bound party and required consent is present. That the varied triggers are tied to events you control, not calendar dates. That any index and base date is restated rather than left to inherit from the original. And that the deed says expressly whether it attaches to the original permission, a section 73 permission, or both.

Where the variation follows from a change in the scheme's economics, the supporting viability assessment needs to be contemporaneous rather than a refresh of the original appraisal with new sales values dropped in.

This is general guidance, not legal advice; a deed of variation is a legal document and should be prepared or checked by a solicitor. PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval. You can enter the site postcode to see which supporting reports a variation case is likely to need.