Section 106 appeals: guidance clarifies late deeds

Section 106 appeals in England are affected by a Planning Inspectorate guidance update published on 12th October 2026. It clarifies when a signed planning obligation may be accepted in the quicker Part 1 written appeal procedure, including where the council had an unsigned version before it decided the application.

A planning obligation is a legally binding commitment linked to a development, often used to secure affordable housing, contributions or other measures needed to make a proposal acceptable. The update matters because Part 1 normally limits an appeal to the evidence the council already considered, rather than giving applicants another opportunity to rebuild their case.

I would read this as a useful clarification for applicants caught between finishing the legal paperwork and receiving a refusal. It is not permission to leave everything until the appeal. The Inspectorate still expects obligations to be completed at application stage, and it retains discretion over whether additional material is accepted.

What changed in Section 106 appeals

The Inspectorate has changed two parts of its procedural guide for applications dated on or after 1st April 2026. Paragraph 7.3.2 now expressly includes an executed planning obligation among the application material an Inspector considers. In plain English, executed means the deed has been formally completed, rather than remaining an unsigned draft.

The second change is a new final bullet in paragraph 7.3.4. This identifies an executed obligation as potentially acceptable new evidence where its need was not identified during the application, or where an unsigned version was before the council and has been executed for the appeal.

That distinction is important for Section 106 appeals. A commitment discussed during the application but not formally completed is different from an entirely new package created after refusal. The new wording addresses particular circumstances; it does not create an unrestricted opportunity to introduce fresh promises.

The guidance says the Inspectorate “may consider accepting new evidence”. Those five words matter. An applicant can explain why the exception applies, but cannot assume that lodging a signed deed settles the question. The decision about exceptional evidence remains with the Inspectorate.

Why an unsigned draft is different

The underlying legal mechanism comes from section 106 of the Town and Country Planning Act 1990. Subsection (9) requires a planning obligation to be entered into through an instrument executed as a deed, identifying the land, the person entering into it and the enforcing authority.

An email offering a contribution, an agreement in principle or a document awaiting signatures should therefore not be treated as the completed legal obligation. It may help explain the application history, but that is a separate question from whether a binding instrument exists.

Government planning obligations guidance distinguishes an agreement involving the council from a unilateral undertaking entered into by someone with an interest in the land without the council being a party. The right form depends on what must be secured and who needs to be bound.

For Section 106 appeals, I would check the actual deed alongside the application record. What version did the council receive? What did it secure? Was the need for the obligation raised before the decision? Those questions help establish whether the new exception is relevant.

The Part 1 evidence restriction remains

The quicker written procedure is built around deciding the application that was before the council. The Inspectorate normally considers the application material, the decision notice, the officer report and committee minutes, together with the appeal form and council questionnaire. It is not a general second round of application evidence.

Paragraph 7.3.3 continues to tell applicants to submit all relevant evidence with their application. The clarification about legal deeds sits within that framework. It should not be read as weakening the expectation that an application is ready to be assessed when the council determines it.

The guide also lists other possible material changes, including relevant changes in planning policy, court judgments and another application or appeal decision. Whether those circumstances justify additional material is assessed individually, rather than simply accepted because an appellant labels something new.

Our written representations guide explains the difference between Part 1 and Part 2. Identifying the actual procedure is essential before deciding what evidence can be submitted and when. A non-determination appeal, for example, follows different written procedural arrangements.

What applicants should check now

For anyone preparing Section 106 appeals, the first practical step is to assemble the history of the obligation. Keep the draft supplied with the application, correspondence about its necessity, the council’s assessment and the completed instrument together. Dates and document versions can be more useful than a broad assertion that everyone understood the offer.

If the council had an unsigned version, explain that clearly and identify where it appears in the application record. If the need for an obligation was not identified until later, explain that different circumstance. The guidance recognises both routes, but an account unsupported by the documents may leave the Inspector unable to assess it.

The appeal form is also important. Paragraph 9.2.2 says an appellant who considers that there has been a material change in circumstances should notify the Inspectorate on that form. It also requires a completed planning obligation where applicable. I would not plan around completing the deed at some unspecified later point.

Preparing a valid deed requires attention to the parties, land interests, wording and execution. Planning Geek can advise on the planning case and coordinate with an appropriate legal specialist. The legal instrument itself needs to secure the required outcome; a well-written appeal statement cannot substitute for it.

Acceptance does not guarantee permission

Even if the document is accepted, the Inspector must still decide the appeal on its planning merits. A deed addressing one objection does not automatically resolve design, highways, environmental or other issues. Nor does this guidance update mean that every proposed contribution should be sought or accepted.

The Government’s obligations guidance sets out the familiar tests: an obligation relied on to justify permission must be necessary, directly related to the development, and fairly and reasonably related to it in scale and kind. Completing paperwork and satisfying those substantive tests are different tasks.

For Section 106 appeals, that means checking both the procedural route for getting the document considered and the planning reason for its provisions. A contribution offered simply to improve the chances of permission is not a substitute for demonstrating the required relationship with the development.

England guidance, not a new Act

This is a change to the Inspectorate’s guidance, not a newly commenced statutory amendment or a court judgment. The guide expressly says it has no legal status. It applies to England and to appeals relating to applications submitted on or after 1st April 2026; it should not be transferred automatically to devolved appeal systems.

Section 106 appeals relating to earlier applications have a separate procedural guide. Hearings, inquiries and Part 2 written appeals also have their own arrangements for planning obligations and evidence. Before relying on today’s clarification, check the application date, the appeal type and the procedure actually selected.

My practical message is to complete the obligation during the application wherever possible. Where that has not happened, today’s wording gives a clearer basis for explaining a relevant exception. It gives applicants something specific to address, while leaving the Inspectorate to decide whether the circumstances justify accepting the deed.