Amending S106 Agreements

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These new application and appeal procedures do not replace existing powers to renegotiate section 106 agreements on a voluntary basis. In addition, with respect to affordable housing, this provision does not replace provisions to amend an obligation established by the 1992 regulations and updated by the 2013 regulations (see above). The government has revised the framework for the renegotiation of the P.106 agreements. Chris Slater and James Garbett watch the changes. Secondly, Article 106 agreements, which are more than five years old, are eligible for a specific legal procedure under Article 106a(3), which allows an application for amendment or discharge to be submitted to the local planning authority. After receiving a valid request, the local planning authority must verify whether the obligations contained in the Article 106 agreement still serve a “useful purpose”. In such a finding, the local planning authority can reach one in three conclusions: planning obligations in the form of agreements under Article 106 and agreements under Article 278 should only be taken into account if it is not possible to address unacceptable effects through a planning condition. Local planning authorities are encouraged to use and publish standard forms and templates to support the planning commitment agreement process. This could include model agreements and clauses (including those already published by other bodies) that could be made public to support the construction application procedure. Any other information requested by the local planning authority or any questions raised by the applicant concerning planning obligations should be dealt with at an early stage of the construction application procedure. The use of model agreements does not eliminate the obligation on local planning authorities to consider on a case-by-case basis whether a planning obligation is necessary for construction to be reasonable as intended. Discussions on planning obligations should take place as early as possible in the planning process.

The plans should define strategies for the expected contributions of development in order to allow for fair and open experimentation of the policies under consideration. Local authorities, landowners, developers, local (and, where appropriate, national) infrastructure providers and managers and affordable housing managers should be involved in defining strategies for the expected contributions of development. Pre-interviews can avoid delays in the completion of construction applications that are accepted subject to the conclusion of planning commitment agreements. Local planning authorities should use all funds they receive under planning obligations, as defined in individual agreements, to make development planning acceptable. Agreements should normally include clauses indicating when and how funds are used and allowing for their return after an agreed period, unless this is not the case. In terms of developer contributions, Community Infrastructure Levy (CIL) has not replaced the Section 106 agreements and the introduction of CIL has resulted in a strengthening of the 106 tests. With regard to developer contributions, S106 agreements should focus on the specific risk reduction needed for further development. CIL was designed to address the broader effects of development….

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