I really am the person you don’t want to be left sitting next to at the end of an evening in the pub: “and another misconception about amending section 106 agreements…”
This weekend I belatedly set about unpicking that recent Kimblin J judgment in Lancaster City Council v Secretary of State (High Court, 18 February 2026). The case was a legal challenge by the council to an inspector’s decision letter. The inspector had allowed a section 73 appeal that sought to amend a condition attached to a planning permission for the development of 24 homes. The condition required that the housing mix across the site be implemented in accordance with an approved accommodation schedule which was specifically referenced. The proposal was to amend the condition, on grounds of viability, so as to refer to a revised accommodation schedule, which (unlike that which had been previously approved) referred to all of the dwellings for sale in the open market rather than a proportion being affordable. In so doing he had taken into account a deed of variation agreed between the parties which removed from the existing section 106 agreement an obligation that at least 30% of the dwellings be affordable, whilst still requiring the payment of an open space obligation and setting out a mechanism for the provision and ongoing maintenance of certain areas within the proposed development.
Despite having entered into the deed of variation in the course of the appeal, the council’s ground for challenging the inspector’s decision was that somehow in concluding as part of his decision whether it was appropriate for the parties to enter into the deed of variation he should have applied the test in section 106A of the Town and Country Planning Act 1990 which is higher than the test to be applied under section 73 as to whether a planning permission condition should be discharged or amended, namely as to whether the original section 106 agreement continued to serve a useful purpose and if so whether it would serve that purpose equally well subject to the modifications in the deed of variation.
The judge sensibly rejected that argument and upheld the permission.
The case possibly does illustrate what we know the government has become vexed about: section 73 applications and appeals being used as a “Trojan horse” to achieve variations to section 106 agreements (albeit there does not appear to me to be anything wrong in law with that approach – equivalent to what happened in the Cuba Street appeal I referred to in my 8 October 2025 blog post London Stalling).
But more directly, it also triggered a different peeve: those local planning authorities that insist that any proposal for a section 106 deed of variation be the subject of a formal application under section 106A, with application form to be completed, notices served etc. This is just yet another example of procedural gold-plating or maybe just a misconception as to how section 106A works.
I think I need to set out relevant parts of the section:
“106A Modification and discharge of planning obligations.
(1 ) A planning obligation may not be modified or discharged except—
- by agreement between the authority by whom the obligation is enforceable […] and the person or persons against whom the obligation is enforceable; or
- in accordance with
(i) this section and section 106B […]
(2) An agreement falling within subsection (1)(a) shall not be entered into except by an instrument executed as a deed.
(3) A person against whom a planning obligation is enforceable may, at any time after the expiry of the relevant period, apply to the local planning authority by whom the obligation is enforceable […] for the obligation—
- to have effect subject to such modifications as may be specified in the application; or
- to be discharged.
(4) In subsection (3) “ the relevant period ” means—
- such period as may be prescribed; or
- if no period is prescribed, the period of five years beginning with the date on which the obligation is entered into.
(5) […]
(6) Where an application is made to an authority under subsection (3), the authority may determine—
- that the planning obligation shall continue to have effect without modification;
(b )if the obligation no longer serves a useful purpose, that it shall be discharged; or
- if the obligation continues to serve a useful purpose, but would serve that purpose equally well if it had effect subject to the modifications specified in the application, that it shall have effect subject to those modifications.”
It will be seen that the general position is that a planning obligation (i.e. section 106 agreement or unilateral undertaking) may be modified or discharged (i.e. in practice the subject of a deed of variation) simply by agreement between the local planning authority and those bound by the existing document, with no prior procedural requirements and no specific test for the local planning authority to address before so agreeing.
What section 106A(3) on the other hand enables is a formal application to be made by a party against whom the obligation is enforceable, if the planning obligation is at least five years old (the government could prescribe a different period for the purposes of sub-section (3) but so far hasn’t) . If it does that, there is the specific test in subsection (6) for the authority to apply before determining whether to grant the application. If the authority refuses the application or doesn’t determine it within the statutory period the applicant can appeal to the Secretary of State pursuant to section 106B (for a recent example of a decision in relation to such an appeal see here).
Not only does this explain for the purposes of the Lancaster case why the subsection (6) test was entirely inappropriate but it also identifies why authorities should not insist upon a formal application process where the person requesting the variation is not proceeding by way of subsection (3).
Of course, this does mean that, unless there is a specific publicity commitment set out in the relevant authority’s constitution or statement of community involvement, the local community may not have sight of any proposed deed of variation before it is completed. However in my view this is neither required directly by Article 40(3)(b) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 or as a result of the Court of Appeal’s judgment in R (Greenfield (IOW) Limited v Isle of Wight Council (Court of Appeal, 16 April 2025) – a case which in my view has led to further unnecessary delays in the completion of agreements and the issue of planning permission but…
… I see that last orders have been called and I think you quietly moved away to another table some time ago now.
Simon Ricketts, 1 March 2026
Personal views et cetera
SIMONICITY 