Planning Success – Modification of s106 legal agreement

Planning House are delighted to have secured approval for the modification of a previously agreed s106 legal agreement for residential development in Hartlepool.

A total off-site contribution of £144,615 was previously agreed, however with spiralling costs relating largely to unforeseen archaeological works which arose following the discovery of a Saxon burial site on the land, alongside housing market downturn following the economic decline of 2020 and the covid-19 pandemic.

We worked with the applicant and submitted further information and evidence of costs alongside a viability assessment.  Hartlepool Borough Council planning team determined that the applicant had provided sufficient evidence to justify the inability to pay the previously agreed planning obligations without jeopardising the viability, and ultimately the delivery of the site.  Members of the Planning Committee agreed with Officers and approved the application.

Section 106 agreements form part of the Town and Country Planning Act 1990 and must be necessary to make the development acceptable in terms of planning, directly related to the development in question and be fairly and reasonable related in scale and kind to the development.  An agreement to modify or discharge a planning obligation can be made at any time (and can only be entered into by deed, by virtue of s106A(2) of the Town and Country Planning Act 1990).

However, after the expiry of the “relevant period”, as defined, an application can be made to the appropriate authority (generally the Local Planning Authority) for the modification or discharge sought (see s106A(3)). This means 5 years beginning with the date that the obligation is entered into (s106A(4)(b)).

The first consideration, then, in seeking a variation of a planning obligation, is the age of the s106 Agreement. If less than 5 years has passed, agreement must be sought. If more than 5 years has passed, an application can be made.  In our case the agreement was within 5 years of the agreement being made, however due to the unusual factors involved in the development agreement to apply for the modification was allowed by the Council.

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If you need any advice on modification of an agreement feel free to Contact Us or take a look at our Practical Guide on Modifying s106 agreements which will provide you with some basic guidance.