Varying Section 106 Agreements

Section 106 agreements are generally concluded as a result of a decision that, by a local planning authority, issues building permits to mitigate the impact of new developments and contains provisions to secure infrastructure on and off the site, financial contributions and other mitigation measures. Section 106 of the Town – Country Planning Act 1990 provides that a local planning authority can enter into an agreement with anyone interested in the route on its territory to limit or regulate their development or use. A Section 106 agreement is a contract of engagement between a developer, a landowner and a local planning authority. DCLG has published a guide to support changes to the Growth and Infrastructure Act 2013, which provides more detailed information on what is needed to modify and evaluate requests to amend the accessibility system in section 106. It is a guide to the form of the application, complaint and evidence; evidence of cost-effectiveness and how they should be assessed. Although the application procedure applies to s106 agreements that have been concluded for at least five years, it avoids the requirement for all parties to sign an amendment. This can be a problem, although the developer and local planning authority can agree on the conditions for a change. Section 106A (5) expressly provides that an application to amend the s106 (3) agreement under s106 does not provide for an amendment imposing an obligation on another person subject to the agreement s106. The planning obligations under Section 106 of the Planning and City Planning Act 1990 (as amended), commonly known as s106 agreements, constitute a mechanism that makes a development proposal acceptable in planning that would otherwise not be acceptable. They focus on mitigating the impact of site-specific development. S106 agreements are often referred to as “developer contributions,” as well as highway contributions and the Community Infrastructure Tax.

In addition, as a result of the Ministerial Statement on Start-Up Homes, the guideline states that LPAs should not seek contributions to affordable housing development for affordable housing (but may still target s106, which will mitigate the impact on development). With respect to developer contributions, the Community Infrastructure Tax (CIL) did not replace the Section 106 agreements, which strengthened the s 106 tests. S106 agreements on developer contributions should focus on correcting the specific weakening required for a new development. CIL was designed to address the broader effects of development. There should be no circumstances in which a developer pays CIL and S106 for the same infrastructure for the same development. A party subject to a Section 106 agreement or a unilateral obligation may, at any time after five years from the date of the facts, ask the local planning authority to unload or amende it in accordance with the Planning Act s106A.

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