S106 Renegotiation or Replacement of your Section 106 Agreement
S106 Agreements and Unilateral undertakings can be renegotiated or replaced.
There are several ways to vary or replace existing Unilateral Undertakings and S106 Agreements, and these they are set out below. The best route will depend on the individual circumstances of your planning permission, the policies of your LPA and any changes in material planning circumstances; this is a complex area of our practice and heavily dependent on your particular individual situation, so please ring us to discuss how we can assist.
It should be noted that S106 agreements and Unilateral Undertakings are contracts, and in the first instance the law of contract is applicable.
Planning obligations do not take effect unless there is a material commencement of the planning permission referred to in the agreement. As such, if you obtain and commence a fresh planning permission, any previous planning obligations linked to any earlier un-commenced consent become irrelevant.
If you have made a material commencement of a planning permission you can implement a later permission and move away from the planning obligations linked to the first permission, so long as you can demonstrate that is your intention, and you are not in breach of the contractual obligations of the first consent when you move to the second consent.
It is preferable to obtain a new consent rather than commencing a consent linked to an unsatisfactory planning obligation.
The following notes outline the possibilities provided by legislation:
S73 Town and Country Planning Act
It is possible to replace an existing S106 Agreement or Unilateral Undertaking by an application to develop land without compliance with conditions previously imposed by making a planning application under S73 of the Act. This route will not change or impose additional CIL obligations.
A S73 application creates a new planning permission which requires a new S106 agreement or UU. Any existing agreement falls away as explained above.
A S73 application is typically supported by some slightly varied plans and a S106 Viability Report.
The application incurs a fee of £185, and offers a cost-effective means of replacing any existing S106 agreement or UU.
Some S106 agreements include words that purport to extend the agreement to future S73 applications, in these circumstances an amendment to the existing agreement is required. Should the Planning Authority refuse an amendment, the remedy will be to Appeal to the Planning Inspectorate.
S62 Town and Country Planning Act
The further scenario is to make a fresh planning application for an identical development to that already permitted, but with a different S106 agreement or UU. A new planning permission requires a new S106 Agreement or UU which will necessarily supersede the existing agreement.
There is no planning fee to pay if the new application is made within 12 months of the last planning approval.
An outline application (fee £385 per 0.1 ha) can be a cost-effective alternative to a detailed application (£385 per unit).
Before doing this, you need to consider what other changes might have occurred in planning policy; for instance, CIL may have been introduced.
Appeal under S78(1)(a) of the Town and Country Planning Act
An appeal against a condition imposed in a planning permission creates a new planning consent, which will require a fresh planning obligation. This route involves similar considerations to those concerning S73 applications listed above.
If it is not possible to move to a new planning application, because the original consent is substantially complete, a S106A application may be appropriate.
S106A Town and Country Planning Act 1990
Planning obligations can be renegotiated at any point where the local planning authority and developer agree to do so, however, informal negotiations often get bogged down and lead nowhere.
S106A provides a more formal timetable requiring a decision in 8 weeks. Agreements of any vintage may be subject to an application for variation, and will succeed where either they no longer serve a useful purpose, or the revised proposed terms would serve the original purpose just as effectively as the original deed.
If the planning obligation is over 5 years old, the application may be subject to an appeal to the planning inspectorate in the usual way. Younger agreements can only be appealed by the process of Judicial Review, which is only a realistic option in the most valuable of cases.
The test of ‘no longer serving a useful planning purpose’ is in practice interpreted in a liberal way, which allows applications to be made where obligations are unworkable, are superseded by fresh planning guidance or alternatively fail to comply with the CIL regulations.
The legislation can be found on this link:
S106BA Town and Country Planning Act 1990
This legislation has now expired, and so one of the options above must now be used.