The 5-Year Rule Under Section 106A
Under Section 106A(4) of the Town and Country Planning Act 1990, where a planning obligation was entered into, a person bound by it cannot force the council to review it for the first 5 years without mutual consent.
However, once 5 years have passed from the execution date, the landowner has a statutory right to make an application to the Local Planning Authority requesting that the obligation:
1. Have effect subject to specified modifications (e.g., easing local occupancy criteria or adjusting affordable tenure splits), or
2. Be discharged completely because it no longer serves a useful planning purpose.
Negotiating a Deed of Variation with the Local Council
If 5 years have not elapsed, modification must proceed by mutual agreement via a formal Deed of Variation.
The applicant must submit: (a) A formal planning statement demonstrating why the current terms are unviable or impede housing delivery, (b) An independent RICS-accredited Financial Viability Assessment (FVA) if seeking to reduce affordable housing or developer contributions, and (c) Draft variation wording.
The applicant must pay both their own legal costs and the council's internal legal fees (typically £1,500 to £3,500 + VAT for council legal review).
If the council refuses a Section 106A application or fails to determine it within 8 weeks, the applicant can lodge an appeal under Section 106B directly with the Planning Inspectorate.
How to Remove the S106 Notice from Land Charges
Once the Deed of Variation or discharge order is signed and sealed:
1. The Local Planning Authority issues a formal Certificate of Discharge.
2. The council's Land Charges department removes the entry from Part 3 of the Local Land Charges Register (LLC1).
3. The applicant's conveyancer submits an AP1 application to HM Land Registry with the deed to remove the restriction or schedule entry from the property's Charges Register.