Variation and Discharge of Section 52 and 106 Agreements

United Kingdom
 

General

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the Town and Country Planning Act 1990 and planning agreements under s52 of the Town and Country Planning Act 1971 (now superseded) are land charges and as such run with and bind the land until such time as they have been complied with, they have been varied in accordance with the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.

Agreement

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 purpose".

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 determination.

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 cmm@cms-cmck.com