Section 106 Agreement Variation

The planning obligations under section 106 of the Town and Country Planning Act 1990 and the planning agreements under section 52 of the Town and Country Planning Act 1971 (now replaced) are land debts and, as such, the country is in progress and binding until they are complied with, vary or are formally fulfilled according to the corresponding formalities. Previously, section 106A of the Town and Country Planning Act 1990 provided that planning commitments could only be amended or fulfilled after five years from the date on which they were entered into. A formal application was submitted to the local planning authority (hereinafter LPA) in which the developer had to demonstrate that the obligation no longer served a `useful purpose`. In the absence of such evidence, it was unlikely that the AAA would meet planning obligations or modify them appropriately in order to overcome obstacles to the financial sustainability of development. The guidelines also point out that “deferral times could be limited in time or linked to the government`s broader legislative approach and the removal of CIL easements. although, in this case, we recommend the use of a return date.” The government encourages local planning authorities to “take a pragmatic and proportionate approach to implementing the planning obligations referred to in Section 106 during this period”, in order to remove obstacles faced by developers and minimize site blocking. DCLG has published a guide to support changes to the Growth and Infrastructure Act 2013, which contains more detailed information on what is needed to change the provision of affordable housing in a Section 106 commitment and assess change requests. It is a guide to the format of the application, complaint and evidence; in particular the necessary evidence of viability and how it should be assessed. The legal tests for when you can use an s106 agreement are set out in Regulations 122 and 123 of the Community Infrastructure Levy Regulations 2010, as amended. One of the problems with the old system was that even though a developer and LPA agreed on the terms of a variation, the practicalities of each who signed a certificate of variation were such that the variations were not achieved. The application process avoids the need for everyone to sign an act of amendment.

However, it does not allow additional burdens to be imposed on another party. While the application procedure applies to s106 agreements that have been in existence for at least five years, it is avoided that all parties to the agreement are obliged to sign an act of amendment. This can also be problematic if the developer and the local planning authority can agree on the terms of an amendment. Article 106a(5) expressly provides that a request to amend an agreement s106 under Article 106A(3) may not provide for any amendment imposing an obligation on another person against whom agreement s106 is enforceable. . . .

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