Watching a section 106 agreement being negotiated

When a planning committee resolves to grant permission subject to a section 106 agreement, nothing has been decided in law. No permission exists until the agreement is completed and the decision notice issued, and in the months between those two events the obligations can change. For a neighbour or a parish council that followed the application closely, this is the least visible part of the process and often the part where what was promised at committee quietly becomes something else.

The heads of terms are public. The draft deed usually is not. That asymmetry is the whole difficulty.

When heads of terms become public

Heads of terms appear in the committee report, which is published with the agenda, normally five clear working days before the meeting. They are a summary: so many affordable homes at stated tenures, a contribution towards education, open space transferred and commuted sums for its maintenance, a travel plan, monitoring fees.

Read them closely, because the wording is looser than it looks. "A contribution towards primary education of a sum to be calculated in accordance with the authority's adopted formula" is a different promise from a stated figure. "Up to 30 per cent affordable housing subject to viability" is a different promise again.

Where the report says officers have delegated authority to finalise the agreement, that delegation is where later changes are authorised. The scope of the delegation is usually in the recommendation at the front of the report, and that sentence repays a second reading.

The gap between resolution and the signed agreement

Completion takes time because several parties have to sign. The applicant, the landowner if different, any mortgagee, sometimes the county council as education or highways authority, sometimes a registered provider. Each has solicitors, and each can hold the drafting up.

Delays of several months are routine. Longer gaps happen where viability is being retested, where land ownership is complicated, or where the applicant is trying to sell the site with the resolution in place rather than build it out.

Nothing requires the authority to publish the draft during this period. Some do, most do not, and the usual reason given is that it is a document in negotiation.

Changes made during drafting, and whether they are reported

Three kinds of change happen between resolution and completion.

Drafting changes that give effect to the resolution, such as defining trigger points and certifying mechanisms. These are not reported back and do not need to be.

Changes within the delegation, such as adjusting a contribution to reflect a recalculated formula, or substituting an equivalent on-site provision. These are usually not reported back either, which is where most of the frustration arises.

Changes outside the delegation, such as a reduction in affordable housing. A council's constitution normally requires these to go back to committee. Whether they do depends on whether anyone identifies the change as material, and that judgement is made by officers.

National viability guidance expects assessments informing plan-making and decisions to be publicly available. Where a viability case is driving a change to affordable housing, asking for the appraisal is a reasonable request with policy behind it, and a Viability Assessment submitted with an application should normally be on the file.

Where contributions are published once collected

Authorities report annually on what they have collected and spent through the community infrastructure levy and section 106, in an infrastructure funding statement. That statement names the sums received, the sums allocated and the sums spent, and it is the single most useful public document for anyone trying to follow money from a specific scheme. There is a fuller piece on checking what a section 106 agreement delivered.

Statements are retrospective, so they tell you about last year. They also vary in quality. Some authorities publish a scheme-by-scheme table that lets you trace a specific agreement. Others report only totals by category, which tells you the money exists somewhere without telling you where it came from or what it bought. For a current scheme, the completed deed plus the trigger points in it is what tells you when something should happen.

Monitoring whether obligations are delivered

Obligations are delivered against triggers: before works start, on occupation of a stated number of dwellings, before first use, within a stated period of a stated event. Councils may charge a monitoring fee, and many do.

Monitoring is uneven. Smaller authorities monitor the big-ticket items and not the detail, and an obligation to plant a hedge or submit a travel plan review can go uncollected for years. If you are watching a specific obligation, the useful things to do are:

1. Get a copy of the completed agreement from the planning register and find the clause and its trigger.
2. Work out, from the building control or site activity, whether the trigger has occurred.
3. Write to the planning obligations or monitoring officer naming the clause and asking whether it has been discharged.
4. Ask to see any certificate, notice or submitted document the clause required.
5. Escalate to the complaints procedure if the authority does not answer a specific question about a specific clause.

A specific question gets an answer far more often than a general complaint about a development.

Deeds of variation and renegotiated affordable housing

Section 106A of the Town and Country Planning Act 1990 allows an obligation to be modified or discharged by agreement at any time, and by application to the authority after five years, with an appeal to the Secretary of State if the authority refuses.

In practice most variations are by agreement, and they are most often about affordable housing: tenure switched, numbers reduced, or a commuted payment substituted for on-site units. The council's reasoning may be perfectly sound, because an unviable scheme delivers nothing. The problem for a community reader is that the reasoning is often not published alongside the deed.

Applications to modify obligations appear on the planning register with their own reference, and they attract publicity in some authorities and none in others. Ask to be notified. A written request to the case officer to be added to the consultation for any application to modify the obligation costs nothing, and it is the only reliable way to hear about a variation before it is completed.

Questions worth asking the council

Short, specific and in writing, each naming a document or a clause.

What was the exact delegation given to officers at committee? Has the agreement been completed, and on what date? Can I have a copy of the completed deed? Which clause secures the affordable housing, and what are its triggers? Has any deed of variation been sought or completed? Has the monitoring fee been collected, and who holds the monitoring record?

A Statement of Community Involvement submitted by the applicant describes consultation before the decision and tells you nothing about this stage, which is a gap worth knowing about. Reading the eventual decision notice is a separate skill, covered in reading a decision notice as a neighbour.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it.