S106 Agreement Re-negotiations
March 1st, 2013 by Louise Humphreys
Posted In: Planning
On 28 February 2013 new regulations came into force which altered the scope of section 106A(3) of the Town and County Planning Act 1990 - which allows a landowner/developer to apply to the local planning authority for the modification or discharge of an existing section 106 agreement where it meets certain criteria.
Historically, there have been two potential means of renegotiating or discharging section 106 agreements:
- Amendment / Discharge through voluntary cooperation and consent of the local planning authority, together with any other party against whom the agreement is enforceable. Agreed amendments to section 106 obligations can be negotiated at any time, and are normally effected by way of a deed of variation made between the parties currently holding the benefit and the burden of the contract.
- Application under s106A for agreement which are over five years old. Upon receipt of a valid application, the local planning authority must consider whether the obligation(s) contained in the section 106 agreement still serves a "useful purpose". In making such a determination, the local planning authority can reach one of three conclusions:
- that the planning obligation shall continue to have effect without modification;
- that the obligation no longer serves a useful purpose, in which case the local planning authority shall discharge it; or
- that the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, in which case it shall have effect subject to those modifications.
The new regulations amend the criteria which section 106 agreements must meet in order to be eligible for an application under section 106A(3).
From 28 February 2013 onwards, all section 106 agreements made on or prior to 6 April 2010 will be eligible to be considered by the local planning authority under the statutory application procedure.
Agreements made after 6 April 2010 will continue to be subject to the historic five-year timeframe, meaning that the earliest that any such agreement could be eligible for a section 106A(3) application will be April 2015.
The cut-off date of 6 April 2010 reflects the date on which the Community Infrastructure Levy Regulations 2010 came into force, in which Regulation 122 placed on statutory footing the requirement that (from that date onwards) any planning obligations sought by a local planning authority in consideration of the grant of planning permission must be:
- necessary to make the development acceptable in planning terms;
- directly related to the development;
- fairly and reasonably related in scale and kind to the development.