Section 106 Agreements Solicitors

Section 106 of the Town and Country Planning Act 1990 (as amended) (the 1990 Act) deals with planning obligations. A section 106 Agreement is a binding contract made between a local planning authority (LPA) and the landowner and/or developer. The purpose of the section 106 Agreement is to compensate for the effect of a development on the local community.

Without the contributions made by a developer under a section 106 agreement, the LPA might refuse to grant planning permission. The contributions can be used to benefit the area, for example, by providing affordable housing, public open space, transport links or infrastructure improvements.

Glanvilles’ property lawyers are experts in advising landowners and developers in relation to section 106 Agreements. We also advise clients buying and selling property that is subject to a section 106 Agreement.

Our services include:

Drafting and negotiating section 106 Agreements;
Advising in connection with any disputes or enforcement action relating to section 106 Agreements;
Advising in relation to proposed modifications (variations) of section 106; Agreements including pursuant to section 106A of the 1990 Act; and
Advising in relation to proposed discharge (termination) of section 106 Agreements including pursuant to section 106B of the 1990 Act.

Our property lawyers will provide bespoke advice tailored to your needs and the development in question.

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The Glanvilles guide to section 106 Agreements

What is a section 106 agreement?

When a planning application is submitted to the LPA, the LPA may require the landowner and/or the developer to enter into a section 106 Agreement. A section 106 Agreement must be necessary to make a proposed development acceptable in planning terms, directly relate to the proposed development and be fairly and reasonably related in scale and kind. The LPA may refuse to grant the planning application unless the section 106 Agreement is in place.

Section 106 Agreements contain planning obligations. Such obligations can:

Require that land is used in a particular way;
Impose restrictions in respect of the development;
Prohibit certain use of the land;
Require payments to be made to the LPA;
Impose obligations to allow activities to be carried out on the land;
Require the landowner to permit certain use of the land, for example, in respect of infrastructure such as pipes and cables; and
Impose restrictions when a property is sold.

Planning obligations should be distinguished from planning conditions which are the conditions which a planning permission is granted subject to. Unlike planning conditions, planning obligations can apply to matters on and off the land which is to be developed and can extend to the payment of a sum of money to the LPA.

The obligations in a section 106 Agreement “run with the land”. This means that they bind the original parties to the section 106 Agreement and, unless expressly stated otherwise, all future owners of the land to be developed. As such, it is important to ensure that suitable limitation of liability provisions are incorporated into the section 106 Agreement.

Do section 106 agreements still exist?

In short, yes. The Planning Act 2008 introduced the community infrastructure levy (CIL). CIL is a discretionary charge that the LPA can levy on development. The aim of CIL is to ensure that landowners and developers will fund the costs incurred in providing infrastructure to support the development of an area. Where CIL is introduced by the LPA, it should replace much of the funding previously provided under section 106 Agreements for the relevant LPA. However, section 106 Agreements continue alongside the CIL in relation to site specific requirements.

Where can I find section 106 agreements?

Section 106 Agreements are registered as a local land charge. If you are buying a property, your lawyer should undertake a local authority search. The local authority search will reveal whether a section 106 Agreement is in place for the property.

The seller’s lawyer can be asked to provide a copy of the section 106 Agreement so that the buyer’s lawyer can advise the buyer as to the extent of any continuing obligations which the buyer will inherit if the buyer purchases the property.

What is an example of the obligations which can be imposed by a section 106 Agreement?

Examples of planning obligations imposed by a section 106 Agreement include:

A developer must provide a certain number of affordable properties within the development;
An open green space is to be created within the development;
Homes built on agricultural land can only be sold to agricultural workers;
Imposing restrictions on how the property is marketed and to whom it can be sold;
The provision of a Suitable Alternative Natural Green Space (SANG), which is an area of land intended to protect areas of importance for nature conservation. The SANG can provide a buffer between a Special Protection Area and the development; and
Strategic Access Management and Monitoring (SAMM) payments. SAMM payments are payments towards the monitoring of a SANG.

How long do s106 obligations last?

Section 106 agreements typically come into effect when the development in question is implemented and can be unlimited in duration depending on the nature of the obligation.

It is possible to apply to the LPA to have the section 106 Agreement modified or discharged by agreement or, if the LPA do not agree and subject to various conditions being met, by making a formal application pursuant to section 106A (modification) or section 106B (discharge) of the 1990 Act.

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