A section 106 agreement can continue to affect land long after planning permission has been granted. It may require affordable housing, financial contributions, highway works, open-space provision or restrictions on how a development is used. Problems can arise when circumstances change, a payment trigger is disputed or a local planning authority says an obligation has not been fulfilled.
For developers and landowners in England, the starting point should always be the actual legal document rather than a summary from the original planning application. A section 106 dispute solicitor or another planning-law professional may be useful where the wording, enforceability or route to modification is unclear. Aldwych Legal supports clients across England with planning disputes and strategic case preparation.
What Is a Section 106 Planning Obligation?
Section 106 of the Town and Country Planning Act 1990 allows a person with an interest in land to enter into a planning obligation. It may take the form of an agreement with the local planning authority or a unilateral undertaking.
An obligation can:
- restrict development or the use of land;
- require specified operations or activities;
- require land to be used in a particular way; or
- require financial payments to be made.
Planning obligations generally run with the land and can therefore affect successors in title, subject to the wording of the instrument and statutory framework. Where an obligation is relied upon as a reason for granting planning permission, it must satisfy the statutory tests of being necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind.
Read the Agreement Before Assuming There Is a Breach
Many section 106 disputes turn on drafting and trigger events. A contribution may become payable on commencement, occupation of a particular number of homes or another specified milestone. An obligation requiring works may contain its own timetable and notification procedure.
Before accepting that a breach has occurred, check:
- the definitions used in the agreement;
- which land is bound;
- who is responsible for each obligation;
- commencement and occupation triggers;
- indexation and interest provisions;
- notice requirements;
- payment dates; and
- any dispute-resolution or variation provisions.
Aldwych Legal can support evidence-led review where several permissions, deeds of variation or development phases affect the same site.
Can Agreement change a Section 106 Obligation?
Planning obligations can be renegotiated where the local planning authority and the relevant parties agree to do so. Government guidance confirms that voluntary renegotiation can take place at any point. A consensual modification or discharge under section 106A normally needs to be formally documented, with an agreed modification executed as a deed.
This can be useful where a development has changed, a different form of mitigation would serve the same planning purpose or both parties accept that an existing obligation no longer operates sensibly.
The authority does not have to agree simply because an obligation has become inconvenient or more expensive. A section 106 agreement solicitor or another appropriate professional may help distinguish a genuine interpretation problem from a request to renegotiate a valid obligation.
When Is a Formal Section 106A Application Available?
Where agreement cannot be reached, section 106A provides a statutory route for qualifying obligations. For obligations entered into after 6 April 2010, a formal application to modify or discharge can generally be made once five years have passed from the date the obligation was entered into. For obligations entered into on or before 6 April 2010, current government guidance says an application can be made at any time.
The statutory test is important. An obligation may be discharged where it no longer serves a useful purpose. If it continues to serve a useful purpose, it may be modified where that purpose would be served equally well by the obligation in its proposed modified form.
The process is therefore not simply an opportunity to rewrite an agreement because development economics have changed.
Where modification, conditions and wider planning issues overlap, planning obligations and conditions advice can help explain how these routes fit within a broader planning dispute.
What if the Council Refuses the Application?
A decision refusing a qualifying section 106A application can carry a right of appeal under section 106B. An appeal may also arise where the local planning authority does not determine the application within the applicable statutory framework.
These are commonly referred to as section 106B appeals.
The evidence should focus on the statutory test. Depending on the dispute, this may include updated infrastructure information, development evidence, delivery arrangements or material showing why the obligation no longer serves a useful purpose—or why that purpose would be served equally well after modification.
Aldwych Legal supports strategic case preparation where negotiation has failed and the evidence for modification or discharge needs to be organised clearly.
What Happens if a Section 106 Obligation Is Breached?
A section 106 obligation is legally enforceable.
Under section 106, a restriction or requirement imposed through a planning obligation can be enforced by injunction. This can create significant consequences where a developer continues in breach of a restriction or fails to meet an obligation.
Where the obligation requires specified operations to be carried out on the land and they have not been completed, the authority can also have power to enter the land, carry out those operations and recover its reasonable expenses from those against whom the obligation is enforceable. Before using that entry power, the authority must give at least 21 days’ notice to the relevant persons.
Financial obligations may also generate interest or other consequences under the wording of the deed itself.
Check Whether the Obligation Has Actually Been Triggered
Before responding to an allegation of non-compliance, identify exactly what event is said to have triggered the obligation.
For example, a payment due before “occupation” may depend on how that term is defined. A phased development may contain different triggers for different parcels. There may also be exclusions, notice requirements or conditions that must occur before liability arises.
Relevant evidence can include commencement records, occupation dates, completion information, correspondence and proof of payments. A developer planning solicitor or another planning professional may be useful where several deeds, permissions or trigger dates interact.
Section 106 and CIL Are Different
Section 106 obligations and the Community Infrastructure Levy can both affect development costs, but they operate under different legal frameworks. A section 106 agreement may require site-specific mitigation, payments, works or restrictions. CIL has its own liability, collection, relief and appeal system.
A dispute over one does not automatically change liability under the other. Planning conditions, Building Regulations, restrictive covenants and title matters should also be treated separately.
Consider the Practical Outcome Before Escalating
Not every disagreement needs to move immediately to a formal appeal or court action. If both parties broadly agree on the planning purpose, negotiation may identify a modification that protects that purpose while responding to changed circumstances.
Where there is a genuine dispute, the parties should identify whether it concerns interpretation, enforcement, modification or discharge. Those are different questions and may require different procedures.
Early planning legal advice can also help prevent a trigger date, payment obligation or development milestone from passing while the parties are still debating what the agreement means.
Conclusion
Section 106 disputes often depend on precise wording, trigger events and the continuing purpose of the obligation. The planning permission, original agreement and any later deeds of variation should be reviewed together before deciding that a breach has occurred or that an obligation should be changed.
Voluntary renegotiation may be possible at any time where the parties agree. Section 106A provides a formal modification or discharge route in qualifying circumstances, while section 106B can provide an appeal route following refusal or non-determination.
Aldwych Legal supports clients across England with planning-dispute preparation and strategic case management. Early review of the deed, planning history and evidence can help determine whether negotiation, modification, appeal or compliance is the most appropriate practical response.