Amendments to Section 106 agreements
How are Section 106 agreements modified?
Planning obligations can be renegotiated at any point, where the local planning authority and developer wish to do so. In the first instance please contact the Greater Cambridge Planning Service using firstname.lastname@example.org to discuss
Where there is no agreement to voluntarily renegotiate, and the planning obligation predates April 2010 or is over 5 years old, an application may be made to the local planning authority by a person against whom a planning obligation is enforceable for the obligation:
(a) to have effect subject to such modifications as may be specified in the application; or
(b) to be discharged.
These applications are commonly known as Section 106A applications.
How much does this cost?
Whilst there is no direct fee for an application seeking to modify a planning obligation, the Council will likely formalise the changes through a deed of variation the cost of which being covered by the applicant.
How is an application made?
The application is made on a form provided which requires:
- the applicant’s name and address;
- the address or location of the land to which the application relates and the nature of the applicant’s interest in it,
- sufficient information to identify the planning obligation which the applicant wants to have modified or discharged;
- the reasons for applying for the modification or discharge;
- other information that the authority considers necessary to enable them to determine the application.
The completed application form will need to be accompanied by a map of the land that is subject to the planning obligation.
Download an application form
What is the time period for determination?
The application has to be determined within 8 weeks of receipt of the application unless an extended period is agreed.
What might the Council decide?
The authority may either determine:
- That the planning obligation shall continue to have effect without modification;
- That the obligation no longer serves a useful purpose and shall be discharged; or
- That the obligation continues to serve a useful purpose, but as it would serve that purpose equally well if it had effect subject to the modifications specified in the application, it shall have effect subject to those modifications. In this case, the modified obligation is enforceable as if it had been entered into on the date on which notice of the determination was given to the applicant.
What are the principles to be applied where an application is made?
There are four essential questions to be considered:
- What is the current obligation?
- What purpose does it fulfil?
- Is it a useful purpose? and if so,
- Would the obligation serve that purpose equally well if it had effect subject to the proposed modifications?
Section 106A involves a precise and specific statutory test and does not bring in the full range of planning considerations involved, for example, in an ordinary decision on the grant or refusal of planning permission.
What if the Council refuses the application?
Applicants have a right of appeal against a decision by the Council to refuse a Section 106A application. These provisions are set out in Section 106B of the Act.
However, the right of appeal applies only where the planning obligation is at least five years old.