Old Section 106 agreements: how to modify or discharge an obligation

 

A Section 106 agreement does not expire simply because it is old. An obligation entered into 10, 20 or even 30 years ago can still bind the land if its wording continues to bite and it has not been satisfied, released or discharged.

But old obligations are not untouchable. Section 106A of the Town and Country Planning Act 1990 provides routes to modify or discharge a Section 106 obligation. The important question is not simply its age or whether a council would draft the same agreement today. The statutory question is whether the particular obligation still serves a useful purpose, and if so whether it would serve that purpose equally well in the modified form you propose.

This page deals with old agreements. Our main Section 106 agreement guide explains how planning obligations work more generally.

 

First, read the actual agreement

 

Before looking for a legal escape route, work out exactly what the document says. Old Section 106 agreements are often described rather loosely on a local land charges search, and the headline description may not tell you whether the obligation still affects your property.

Check:

• the land to which the agreement applies
• the exact clause or schedule which causes the problem
• the trigger for the obligation
• whether the trigger has ever occurred
• whether the obligation has already been performed or paid
• which successors in title are bound
• any express release for individual homeowners, mortgagees or purchasers
• whether the council has previously confirmed compliance or entered into a deed of variation

Sometimes the answer is that the obligation does not bite on the present owner at all. That is very different from asking the council to discharge it.

 

Route 1: agree a deed of variation or discharge at any time

 

Under section 106A(1)(a), the local planning authority and the person or persons against whom the obligation is enforceable can agree to modify or discharge it by deed.

This consensual route is available at any time. There is no need to wait five years if the council is willing to agree. For a straightforward obsolete restriction this can be quicker and less adversarial than a formal statutory application.

The difficulty is obvious: the council has to agree. If it believes the obligation remains important it can simply decline to enter into the deed, leaving the statutory application route to be considered where available.

 

Route 2: make a formal application under section 106A

 

The formal route is more powerful because it does not depend on the council first agreeing to negotiate.

The timing is slightly unusual:

• obligations entered into on or before 6th April 2010: government guidance says a formal application can be made at any time
• obligations entered into after 6th April 2010: an application can normally be made once five years have elapsed from the date the obligation was entered into

So a 20-year-old Section 106 is comfortably old enough for the formal route. Age, however, merely opens the door to the application. It does not tell the council what the decision must be.

 

The useful-purpose test

 

Section 106A(6) gives the council only three substantive outcomes on a formal application:

• leave the obligation in force without modification
• discharge it if it no longer serves a useful purpose
• modify it if it continues to serve a useful purpose but would serve that purpose equally well with the modification specified in the application

That makes the wording of the application very important. If you ask for the wrong modification, the council cannot simply invent a different compromise and approve that under the statutory test.

 

The four questions to answer

 

The courts and Planning Inspectors have repeatedly approached section 106A through four questions:

• What is the current obligation?
• What purpose does it fulfil?
• Is that a useful purpose?
• Would it serve that purpose equally well if the proposed modification were made?

This formulation comes from R (Garden and Leisure Group Ltd) v North Somerset Council [2003] EWHC 1605 (Admin) and was applied again in the major Chilmington Green s106B appeals decided in January 2026.

 

A useful purpose is not necessarily the original purpose

 

It is tempting to ask only whether the reason for imposing the obligation 20 years ago still exists. That is relevant, but it is not the whole test.

Case law establishes that the obligation may now serve a useful purpose which is not identical to its original purpose. The courts have also rejected the idea that “useful purpose” must be confined rigidly to a useful planning purpose.

That is why a section 106A application needs more than a comparison between today’s local plan and the policy which existed when the agreement was signed.

 

Current planning policy does not automatically wipe out an old obligation

 

A formal section 106A application is not a fresh planning application. You cannot simply reopen the original permission and ask whether the council would impose the same planning obligation today.

The 2026 Chilmington Green appeal made this particularly clear. The Inspector said that the planning merits of the development are not the issue in a section 106A application and that the process cannot be used to change the basis on which the permission was originally granted.

This can produce a result which feels counter-intuitive. Even if an obligation might not satisfy today’s CIL Regulation 122 tests if negotiated afresh, it may still serve a useful purpose for section 106A.

 

What if the obligation makes the development unviable?

 

There used to be a special statutory procedure, sections 106BA to 106BC, for reviewing affordable-housing obligations on viability grounds. That temporary route ended on 30th April 2016.

Do not assume that ordinary section 106A has quietly replaced it. In the 2026 Chilmington Green appeal the Inspector rejected the argument that scheme-wide viability supplies an overriding additional test. An obligation can still serve a useful purpose even if compliance makes development harder or financially unattractive.

Viability and changed circumstances can form part of the factual background, but the application must come back to the statutory useful-purpose test for each obligation you want changed.

 

Old agricultural occupancy, affordable housing and other restrictions

 

The strength of a section 106A case depends on the particular obligation. Examples which frequently generate enquiries include:

• agricultural or rural-worker occupancy restrictions
• affordable housing tenure or occupancy provisions
• restrictions preventing separate sale or occupation of an annexe
• highway, education or open-space contributions which have never been triggered
• business or employment restrictions attached to old permissions
• landscape, management or maintenance obligations

There is no rule that a 20-year-old agricultural tie, for example, should automatically disappear. Evidence about what purpose it serves today is the heart of the application.

 

BNG obligations have an additional restriction

 

There is now an important special rule for biodiversity net gain. Section 106A contains additional protection against modifying or discharging an obligation where doing so would prevent the biodiversity gain objective being met, or create a significant risk of it not being met.

That will mainly affect newer obligations rather than a 20-year-old agreement, but it is a reminder that section 106A is no longer completely uniform across every kind of obligation. See our guide to biodiversity net gain.

 

How long does the council have to decide?

 

The 1992 Modification and Discharge Regulations require the local planning authority to give written notice of its decision within 8 weeks of receiving the application, unless a longer period is agreed in writing. The authority cannot determine the application before the required publicity and representation periods have expired.

Councils commonly charge their own administrative and legal costs for dealing with deeds and applications, so check the local fee schedule before submitting. These costs are not uniform nationally.

 

Appealing under section 106B

 

If the council refuses to modify or discharge the obligation, or does not determine the application within the prescribed period, there is a right of appeal under section 106B.

The normal appeal deadline is six months from the council’s decision, or for non-determination six months from expiry of the determination period. The Secretary of State has power to allow a longer period.

The Inspector applies the same section 106A statutory tests. It is not an ordinary section 78 appeal against the original planning permission.

 

Recent example: Chilmington Green

 

The Chilmington Green appeals, APP/W2275/Q/23/3333923 and related appeal, were decided on 20th January 2026 after a lengthy inquiry concerning a 2017 Section 106 agreement for a major mixed-use development.

The developer sought more than 100 changes. The result was a split decision: some obligations were discharged, some modified and others left untouched. The Inspector emphasised that each request had to be tested individually and restated the four useful-purpose questions.

That is a useful lesson even for a much smaller 20-year-old agreement. Do not present the council with a general complaint that “the s106 is out of date”. Identify the exact obligation, its present purpose and the precise modification or discharge sought.

 

Evidence for an old Section 106 application

 

• the complete original agreement and every deed of variation
• the original planning permission and relevant officer or committee report
• evidence showing what has happened since the agreement was signed
• current factual evidence addressing the purpose served by the obligation
• relevant current policy, while recognising that this is not a fresh planning balance
• the exact wording of the discharge or modification requested
• evidence that the modified wording would serve any continuing purpose equally well
• details of everybody against whom the obligation remains enforceable and the required ownership notices

 

Relevant legislation, guidance and cases

 

• Town and Country Planning Act 1990, section 106A – modification and discharge
• Town and Country Planning Act 1990, section 106B – appeals
• Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992
• Government good practice advice on planning obligations
• R (Garden and Leisure Group Ltd) v North Somerset Council [2003] EWHC 1605 (Admin)
• R (Mansfield District Council) v Secretary of State for Housing, Communities and Local Government [2018] EWHC 1794 (Admin)
• Chilmington Green – appeal 3333923, decision 20th January 2026

Developer contributions & planning agreements

 

Old Section 106 Agreement Page Updated: 10th September 2026