Drafting section 106 agreements—practical advice for developers
Drafting section 106 agreements—practical advice for developers

The following Property guidance note provides comprehensive and up to date legal information covering:

  • Drafting section 106 agreements—practical advice for developers
  • Standard form planning obligations/section 106 agreement
  • Validity/enforceability of obligation
  • Obligations contingent on planning permission
  • Parties
  • Viability
  • Indemnities in favour of successors in title
  • Financial contributions
  • Fees
  • Approvals and consents by the LPA
  • more

Agreements made under section 106 of the Town and Country Planning Act 1990 (TCPA 1990) (formerly section 52 agreements), also known as 'planning obligations' and ‘s 106 agreements’, are agreements between developers and local planning authorities (LPAs) that require developers to contribute towards a range of infrastructure and services, such as community facilities, public open space, transport improvements and/or affordable housing, to mitigate the impacts of their development. They bind land and are enforceable against successors in title.

See Practice Note: Planning obligations—key points and Checklist for drafting a section 106 agreement.

Standard form planning obligations/section 106 agreement

LPAs usually provide the first draft of the s 106 agreement, based on their standard agreements or model clauses. The developer then amends it and negotiations are undertaken to come to an agreed decision. Although each s 106 agreement will be unique and respond to the particular development which it regulates, there are a number of provisions which one would expect to see in all s 106 agreements, see Precedent: S 106 agreement.

It is a good idea to raise any difficult issues or controversial clauses in the course of pre-application discussion or negotiation with the LPA.

Validity/enforceability of obligation

There are a number of restrictions on what form of obligation can lawfully be imposed as a planning obligation (see Practice Notes: