Section 106 (S106) Agreement

Planning obligations

A Section 106 planning obligation may be modified (known as a Deed of Modification) or discharged in two ways:

• Within five years of the date of the completion of the obligation, at any time, by agreement between us and the person or persons against whom the obligation is enforceable.
• After five years beginning with the date the obligation was legally completed (or a later date specified in the obligation itself).

Making an application

For a request for the agreement to be amended within five years, you will need to set out reasons why this is necessary to us.

We will determine the application (i.e. after five years) in one of the following ways:

• The obligation is no longer needed to serve its original intended purpose, it may be discharged.
• If we consider that the obligation is still needed to serve its original intended purpose, but that this can be achieved by modifying the obligation in the way proposed in the application, we can agree to modify the obligation.
• If we consider that the obligation still serves a useful purpose, we can refuse to discharge the relevant obligation.

A request to modify a S106 Legal Agreement will be subject to a fee of £2,000 (plus VAT) plus Legal Fees (variable). The fee is to cover our costs to assess and review your request to modify the legal agreement, consult with relevant departments such as our housing teams, as well as presenting this request to the Planning and Development Committee for its decision, in line with the Council’s constitution.

The legal costs will vary depending on the request made to the council to modify a legal agreement. You will be expected to cover the costs of, the Council’s appointed solicitors and, depending on the nature of the request to modify an agreement, the legal costs of the County Council solicitors as well.

Vacant building credit

Where a vacant building is brought back into any lawful use or is to be demolished to be replaced by a new building, the developer will only be offered a financial credit (equivalent to the existing gross floorspace of the relevant vacant building(s)) which will be offset against the affordable housing contribution for the development, where the building(s) has been completely (100%) vacant for a period of 6 months before any application is submitted to us. The building cannot be made vacant (e.g. terminating leases of existing tenants) for the sole purpose of redevelopment. 'Abandonment' in this context, follows the interpretation in general planning law, and, depends on factors such as the condition of the building(s), length of non-use, whether there has been an intervening use, and evidence of the owner's intentions.

Applicants will need to provide the gross external floor area (GEA) of any vacant building that they wish to claim vacant building credit on, and, the proposed building. The GEAs must be signed off by a RICS Chartered Surveyor or RIBA member architect.

Viability appraisals

For applications with any residential element and which are not Policy compliant, applicants will be required to submit an open book viability appraisal which we will publish on our website. We may include a clause in any S106 agreement requiring the viability to be reviewed within a defined time frame.