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The important change is that s106 agreements should now normally be completed at the application stage, so that the LPA can take it into account before it determines the application. Appeals relating to applications submitted before 1 April 2026 will continue to require the s106 agreement to be submitted to PINS with the appeal.
The purpose of this new requirement seems to be to bring the negotiation of the s106 agreement to the forefront and obtain the LPA’s comments on this as part of its decision.
Can a s106 agreement still be submitted at appeal?
The new guidance states that only in exceptional circumstances should a s106 agreement be completed after the LPA’s decision. In that case, PINS must receive a copy of the completed agreement with the appeal submission itself, together with an explanation of why it is being submitted at that stage. Those received after the deadlines will be taken into account only at the Inspector’s discretion, and the Inspector will not delay issuing a decision to wait for a s106 agreement to be executed unless there are very exceptional circumstances.
Where there has been a material change in circumstances since the LPA’s decision, PINS may allow the submission an executed planning obligation where the need for one was not identified at the application stage or where an unsigned version was before the LPA and has since been executed for the appeal.
What should applicants do?
Our multi-disciplinary team of planning consultants and planning solicitors are dealing with a regular caseload of appeal s106 agreements and have generally found that it is extremely difficult to obtain a completed s106 agreement for submission with an appeal, and this can result in long delays in submitting the appeal. The new guidance will bring the date of completion of a s106 agreement even earlier, to a point perhaps unknown to the applicant who may not know when the LPA will be making its decision on the planning application.
It will therefore be critical for applicants to progress s106 agreements at the earliest stage in the cycle of the planning application and press for this to be progressed as soon as possible before the LPA makes its decision on the application which is likely to lead to longer determination periods. We advise instructing your planning consultants to progress this at the earliest stage of a planning application, and getting your solicitors on board early to progress this as quickly as possible prior to determination.
What will the impact be?
The changes put more onus on applicants to progress their s106 agreements at an early stage, and effectively puts appellants at risk of a dismissal or invalid appeal for failure to provide an adequate s106 agreement.
There will be more cost involved at an early stage due to the need to progress the s106 agreement sooner, and potentially with more changes as the requirements evolve as the application progresses.
Our view
Our experts’ view is that the appeal process should instead be updated such that a draft s106 agreement is submitted with the appeal and the LPA can make its comments on it throughout the appeal process. This would provide the appellant with a route to ensuring that it can obtain comments on a draft s106 agreement in a timely manner without delaying appeal submissions and puts the onus on both parties to formally respond.
If you would like advice on planning obligations or an upcoming appeal, please contact DMH Stallard’s Planning team via our online enquiry form, or by calling +44(0)3333 231580.
