I don’t think I’m wrong to be needling the Planning Inspectorate over three specific sentences which were introduced on 14 October 2026, without any accompanying announcement, into its Procedural Guide for appeals relating to applications dated on or after 1 April 2026. Whether or not in policy terms it would be a good thing, the new passages in my view will be read by many as imposing new expectations on the part of potential appellants as to steps they should have taken in the planning application process itself to prepare a draft section 106 planning obligation before the application was determined. The Procedural Guide is our main reference point for how all parties should conduct themselves in relation to the planning appeals process and it should not be surprising if words are taken to mean what they say…
Before I get to those three sentences, two preliminary points:
Preliminary point 1: This is not a gripe about deadlines for completion of section 106 planning obligations – the guidance is unchanged in that respect from its 12 February 2026 version and we should all be clear:
- Part 1 written representations appeals (that expanded category, where appeals are processed on very much a frontloaded basis with no new evidence at appeal stage, no statements of case, evidence or representations from the local planning authority or third parties – for more detail see my blog post Don’t Be An April Fool: Written Reps Planning Appeals Are About To Get Faster But Also Riskier) and Part 2 written representations appeals: “the appellant must ensure that we receive an executed and certified copy of the planning obligation at the time of making their appeal”.
- Hearings and inquiries: “The appellant should make sure that a final draft, agreed by all parties to it, is received by us no later than 10 working days before the hearing or inquiry opens… The planning obligation should normally be executed before the hearing or inquiry closes, without the need for an adjournment. However, if that is not practicable the Inspector will agree the details for the receipt of the executed planning obligation with the appellant and the LPA at the hearing or inquiry.” In practice, in my experience the inspector will be unlikely, without being presented with a very good reason indeed, to give more than 14 days after the hearing or inquiry closes for an executed and certified copy of the completed planning obligation to be received.
Preliminary point 2: I am all in favour of simplifying and frontloading the section 106 planning obligation preparation and negotiation process. Many of you will be aware that my firm Town Legal was appointed by the Planning Advisory Service to prepare the draft standard planning agreement and unilateral undertaking for medium-sized residential sites that was consulted upon by MHCLG in August 2026. The results of the consultation process are awaited. But, before that, my firm was carrying out work off its own bat that led to our November 2025 Simplifying & Standardising Section 106 Agreement Processes: Proposals for Reform that was launched in the Houses of Parliament at an event kindly arranged by the LPDF. Do read our recommendations 1 to 10!
My practical concern is that there is not yet a standard template section 106 agreement or unilateral undertaking, whether for medium-sized residential development (pending the outcome of that consultation) or for any other scale or type of development. Many local planning authorities, if they have their own template, do not make it readily available. Many LPA legal teams will insist on preparing the first draft of a planning obligation and are unlikely to receive instructions from their officers to consider a draft prepared by the applicant at an early stage in the process (almost never, for instance, pre-submission). As a specialist planning law firm, we have our own internal template but there is never any certainty that LPA legal teams will accept our version of even the most supposedly standard (“boiler-plate” in the jargon) provisions. And when it comes to the question of the substantive contents of the document, some may be predictable at time of application submission but much will depend on the outcome of negotiation and issues which may arise from consultee responses. And when we look at MHCLG’s planning practice guidance on planning obligations we only see generalised advice along the following lines as to process and as to how early the work on a planning obligation should begin:
“Discussions about planning obligations should take place as early as possible in the planning process. Plans should set out policies for the contributions expected from development to enable fair and open testing of the policies at examination. Local communities, landowners, developers, local (and national where appropriate) infrastructure and affordable housing providers and operators should be involved in the setting of policies for the contributions expected from development. Pre-application discussions can prevent delays in finalising those planning applications which are granted subject to the completion of planning obligation agreements.
Paragraph: 013 Reference ID: 23b-013-20190315”
“Local planning authorities are encouraged to use and publish standard forms and templates to assist with the process of agreeing planning obligations. These could include model agreements and clauses (including those already published by other bodies), that could be made publicly available to help with the planning application process. Any further information required by the local planning authority, or issues raised by the applicant regarding planning obligations, should be addressed at an early stage of the planning application process. Use of model agreements does not remove the requirement for local planning authorities to consider on a case by case basis whether a planning obligation is necessary to make the development acceptable in planning terms.
Paragraph: 016 Reference ID: 23b-016-20190901”
“Planning obligations should be negotiated to enable decisions on planning applications to be made within the statutory time limits or a longer period where agreed in writing between the local planning authority and the applicant.
Paragraph: 017 Reference ID: 23b-017-20190315”
OK so what are these three sentences in the updated Procedural Guidance that I’m concerned about?
Let’s start with the first two sentences of paragraph 18.2.1 below, which I have emboldened, both new:
“Planning obligations should be submitted as part of the application to the LPA. If in exceptional circumstances, a planning obligation is completed after the LPA’s decision, the Planning Inspectorate must receive a copy of the completed agreement within the following deadlines, together with an explanation for why it is being submitted at appeal stage. Planning obligations received after the deadlines will be taken into account only at the Inspector’s discretion. The Inspector will not delay the issue of a decision to wait for an obligation to be executed unless there are very exceptional circumstances.”
That first sentence: “Planning obligations should be submitted as part of the application to the LPA.”
Surely the literal interpretation of that sentence is that the Planning Inspectorate expects, when an appeal is made (under whatever procedure: written representations, hearing or inquiry), that the appellant will be able to show that a draft section 106 planning obligation (i.e. draft section 106 agreement or unilateral undertaking) had been submitted by the appellant to the local planning authority as part of the application package, i.e. at the time the application was submitted.
I am increasingly confident that the Planning Inspectorate does not intend that literal interpretation. If it did, the encouragement would surely have been flagged equivalently by MHCLG in its planning practice guidance, there would have been consultation to make sure that this was practical and sensible given current practice, given where we are with standardisation, templating and (dare I say it) LPA legal team preparedness to accept and deal with applicant-prepared drafts, and the change to the Procedural Guidance in this respect would also have been signposted, if consequences were to flow for potential appellants. However, I hope people can understand why potential appellants and their advisors have been somewhat spooked…
That second sentence: “If in exceptional circumstances, a planning obligation is completed after the LPA’s decision, the Planning Inspectorate must receive a copy of the completed agreement within the following deadlines, together with an explanation for why it is being submitted at appeal stage.”
Maybe again I am being too literal, but I don’t understand this sentence. If an application has been refused and an appeal is needed, the planning obligation will never have been completed before the LPA’s decision. If the application is resolved to be approved, any necessary planning obligation will always be completed before the decision to approve, i.e. the planning permission, is issued.
I think the words “If in exceptional circumstances, a planning obligation is completed after the LPA’s decision…” are surplus to requirements. Perhaps instead there should be a more general exhortation that it is helpful to the Planning Inspectorate if as much progress as possible has been made in negotiating any necessary planning obligation (and at least all substantive heads of terms) during the application determination process so as to narrow the outstanding issues and to refer to paragraph 013 of the planning practice guidance?
The third sentence in the Procedural Guidance that I am concerned about is the final bullet point of paragraph 7.3.4. This is in the section which sets out what the inspector takes into account in relation to Part 1 written representations appeals. Paragraph 7.3.4 sets out the only categories of new evidence that the Planning Inspectorate will usually accept and the final bullet point is “A requirement to submit an executed planning obligation where the need for one was not identified at the application stage or where an unsigned version was before the LPA and it has been executed for the appeal.”
Again, the literal meaning of this phrase is surely that an executed planning obligation may only be submitted with a Part 1 written representations appeal if either “the need for one was not identified at the application stage” (rare) or “where an unsigned version was before the LPA [at application stage] and it has been executed for the appeal” (Eek! The risk of a Part 1 written representations appeal being turned away if a draft planning obligation had not already been before the LPA before the application was determined! The usual position at present, like it or loathe it, is that the first draft of the planning obligation is not prepared until the application has been resolved to be approved. With an accommodating LPA sometimes you can make progress with a draft ahead of that point, but very often not. And if the application is heading for refusal, well usually you have no chance…).
Again, I don’t believe the Planning Inspectorate was intending to bring down the drawbridge like this but rather signal again that it is unhelpful for there to be surprises post determination of the application and instead that it is helpful for Inspectors if as much progress as possible has been made in negotiating any necessary planning obligation (and at least all substantive heads of terms) during the application determination process so as to narrow the outstanding issues and to echo paragraph 013 of the planning practice guidance.
But, bottom line, the buck stops with us advisors in helping potential appellants navigate through an appeal process increasingly beset with icebergs. So that we don’t all overcompensate with premature and ultimately wasteful unnegotiated draft unilateral undertakings, please might PINS review these three sentences in what is otherwise a clear, necessary and helpful iceberg-avoidance document?
One quick final planning obligations related point: Thank you Shoosmiths for hosting this week the launch of the Fabian Society’s paper Community Gains: How Developer Contributions Can Be Used More Quickly and Effectively. It did spark for me some wider thoughts about the whole business of unspent section 106 contributions, unspent CIL contributions, double-dipping and the like, but I think this is enough needling from me for today….
Simon Ricketts, 7 November 2026
Personal views, et cetera
