The Planning Inspectorate has clarified how planning obligations should be handled in English planning appeals, publishing revised procedural guidance and an explanation on 12 November 2026. The change follows complaints that earlier wording could be read as preventing developers from supplying Section 106 obligations after a council had decided an application. The Inspectorate says that was not the approach it intended.
For applicants, councils and planning consultants, the clarification matters most where a refusal involves the absence of an agreement securing affordable housing or infrastructure. Planning obligations remain something to tackle with the local planning authority at application stage, but the Inspectorate has now explained the limited circumstances in which a completed obligation may be considered during an appeal.
The revised guidance applies to appeals arising from planning applications submitted on or after 1 April 2026. It is not a new Act, a change to national planning policy or permission to introduce fresh evidence freely. Different deadlines apply to written representations, hearings and inquiries, so a late legal agreement cannot safely be treated as an automatic solution.
Why the Inspectorate clarified planning obligations
The Inspectorate’s statement published on 12 November acknowledges that updates made as the accelerated appeal procedure developed had been understood more widely than intended. It says practitioners raised concerns and that its wording went further than planned. The agency has consequently changed both the discussion of planning obligations and the section dealing with new evidence at appeal.
In unusually plain language, the Inspectorate states: This is not a change to national planning policy.
This matters because procedural guidance describes how an appeal is managed; it does not itself rewrite the tests in the development plan or the National Planning Policy Framework. The practical issue is whether the Inspector may accept documents and, if so, when they must be supplied.
The updated official procedural guide was revised on 12 November. Its section 18 now refers readers to Planning Practice Guidance for general advice, rather than presenting potentially misleading language as a stricter rule about the timing of negotiations. Its section 7.3 explains the exceptional cases in which new information may be considered.
Planning obligations under the faster appeal procedure
The background is the expanded Part 1 written representations procedure introduced for relevant planning applications from 1 April 2026. Many appeals now proceed largely on the material already before the council. The intention is to prevent an applicant from holding back essential evidence until an appeal and to keep planning decisions with local authorities wherever possible.
The Inspectorate continues to expect applicants and councils to discuss planning obligations early. Where the development needs a legal agreement to secure mitigation or contributions, relying on a later appeal creates delay and risk. The existence of a right of appeal does not mean the Inspector must accept a late obligation or wait indefinitely for solicitors to finish drafting it.
Section 7.3.4 nevertheless recognises that a completed agreement may exceptionally be relevant after the council’s decision if the need for an obligation was not identified at application stage, if heads of terms were discussed with the council, or if an unsigned version was already before it. The Inspectorate decides whether to accept such material on the particular facts. It may seek limited further information or move the appeal to a different procedure.
The same section identifies other potentially material changes, such as a relevant change in policy, a court judgment, an environmental statement requirement or another relevant decision. These are exceptions to the normal evidence limits, not an invitation to redesign a development or submit a new technical case after refusal.
The deadlines applicants still need to meet
For written representations appeals, the Inspectorate’s current section 18 expects an executed and certified copy of the planning obligation when the appeal is made. In a Part 1 appeal, the updated section 7.3 sets out how exceptional later evidence may be considered, but it does not offer a general extension for an unfinished Section 106 agreement.
For hearings and inquiries, the position is different. A final draft agreed by all the parties should arrive no later than 10 working days before the event opens. The obligation should normally be executed before the hearing or inquiry closes, although the Inspector can establish alternative arrangements where that is not practicable.
Planning obligations supplied after the stated deadlines are considered only at the Inspector’s discretion. The guide also says a decision will not be delayed simply to await execution except in very exceptional circumstances. Developers therefore need realistic legal drafting times, not just a planning consultant’s assessment that an obligation could eventually overcome a refusal.
Where affordable housing, financial contributions or highway works depend on a legal agreement, the sensible approach is to identify the requirements while the planning application is still with the council. Planning Geek’s Section 106 agreement guide explains the underlying mechanism and why agreed obligations can be central to whether a development is acceptable.
Why this matters for councils and developers
There is a particular trap where a council refuses permission because no agreement has been completed, even though the development team has already discussed the heads of terms. A practitioner should not assume that the refusal automatically settles the matter. Equally, a developer should not assume that offering a signed undertaking on the eve of an appeal decision guarantees that the Inspector will take it into account.
The useful evidence will be the planning application record: what the council requested, the draft agreement or undertaking supplied, what negotiations occurred, and what changed between the decision and appeal. The revised planning obligations guidance makes those distinctions more important because they may determine whether a late executed document falls within a recognised exception.
This also affects the quality of refusal reasons. If the real concern is that necessary infrastructure or affordable housing has not been secured, the authority should identify the obligation and engage on its terms in time for the planning application to be determined. Appellants should be able to explain what was discussed and why the legal document could not reasonably be completed earlier.
Importantly, the clarification does not create a new right to submit unrelated evidence, revised plans or replacement assessments. For most Part 1 written representation cases the Inspector will consider the same application and supporting material the council had when it made its decision. A separate revised application may be more appropriate where genuinely new evidence is required.
What to do before submitting an appeal
Anyone preparing an appeal involving planning obligations should first identify which appeal procedure applies and which version of the Inspectorate guidance governs the original application. The current guide is expressly for applications submitted on or after 1 April 2026; a separate guide remains available for earlier applications. The procedural date is the application date, not merely the day an appeal is lodged.
Next, establish the status of every proposed obligation: discussed in principle, heads of terms agreed, draft prepared, signed, certified and delivered. Those stages are not interchangeable. Where an exceptional late agreement may be justified, explain the circumstances to the Inspectorate rather than simply attaching it and assuming it will be accepted.
The 12 November clarification is a useful correction to language that had unsettled parts of the profession. It should help prevent unnecessary argument about whether Section 106 material can ever be considered after a council decision. The central practical message remains unchanged: resolve planning obligations early wherever possible, use the correct appeal route and meet the Inspectorate’s stated deadlines.
0 Comments