Planning obligations under s106 of the Town and
Country Planning Act 1990 and planning agreements under s52 of the
Town and Country Planning Act 1971 (now superseded) are land
charges and as such run with and bind the land until such time as
they have been complied with, they have been varied in accordance
with the appropriate formalities or formally discharged.
Both s52 Agreements and s106 Agreements may be
varied or discharged by agreement under deed with the local
planning authority and any other party to the original document.
Any variation to a unilateral s106 obligation likewise requires the
consent of the local planning authority.
There are completely different procedures for
varying or discharging s106 Agreements and s52 Agreements which may
be invoked as follows. Section 106 Agreements
A party against whom a section 106 agreement or
unilateral obligation is enforceable may apply to the local
planning authority, at any time after five years from the date of
the deed, for it to be discharged or modified pursuant to the Town
and Country Planning Act s106A.
The application must be publicised by the local
authority, and objectors given 21 days to make representations.
The local planning authority has the power to
discharge a planning obligation where it "no longer serves a useful
Where modifications are sought, the local planning
authority must consider whether the planning obligation would serve
its purpose equally well with the proposed modification. It may not
make a modification which would impose an obligation on a party
other than the applicant. If a modification is accepted, it takes
effect from the date of the local authority's notice of
If the application is rejected, or the local
planning authority fails to make a decision within 8 weeks, an
appeal can be made to the Secretary of State and if necessary the
matter will be dealt with at inquiry.
Section 52 Agreements
In the case of a section 52 agreement or an
old-style section 106 agreement (i.e. one made before 25 October
1991), the only option is to apply to the Lands Tribunal for a
discharge or modification of a restrictive covenant under section
84 of the Law of Property Act 1925. This procedure is not
specifically geared to planning agreements. The Lands Tribunal may
discharge or modify a restrictive covenant if, given changes in the
character of the property or neighbourhood or other circumstances
of the land, the restriction is obsolete; if its existence prevents
a reasonable user of the land; or if the modification or discharge
will not harm the people entitled to benefit from it.
For further information please contact Catherine
Montgomery on 020 7367 2476 or e-mail firstname.lastname@example.org