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Planning ApplicationsUnited Kingdom
Free Section 106 Modification or Discharge Application Template
A Section 106 modification or discharge application is the formal request to an English Local Planning Authority for variation or release of a planning obligation entered into under section 106 of the Town and Country Planning Act 1990. Use our free UK template to apply under TCPA 1990 s.106A — engaging the five-year window from completion of the original obligation, the no-useful-purpose ground under s.106A(3)(a), the modification-to-continue-to-serve ground under s.106A(3)(b), the eight-week LPA determination period and the six-month section 106B appeal route to the Planning Inspectorate (PINS). The framework applies in England — Wales, Scotland and Northern Ireland operate under separate British devolved planning legislation.
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Section 106 Modification or Discharge Application — TCPA 1990 s.106A
S.106a Application · SI 1992/2832 · 19/00824/MAJ · 15 June 2026
TO: Calderdale Metropolitan Borough Council (the Local Planning Authority)
RE: Application under TCPA 1990 s.106A for modification or discharge of planning obligation — Land East of Walsden Brook, Todmorden OL14 7TP (LPA ref 19/00824/MAJ)
Application is made under section 106A of the Town and Country Planning Act 1990 and the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 (SI 1992/2832) for MODIFICATION of the planning obligation entered into on 22 June 2020 in connection with the planning permission referenced 19/00824/MAJ. The Authority is required to determine this application within EIGHT WEEKS of receipt under regulation 6 of SI 1992/2832. Where the Authority refuses or counter-offers, the applicant may appeal to the Planning Inspectorate under section 106B within SIX MONTHS of the decision notice.
RE: Application under TCPA 1990 s.106A for modification or discharge of planning obligation — Land East of Walsden Brook, Todmorden OL14 7TP (LPA ref 19/00824/MAJ)
Application is made under section 106A of the Town and Country Planning Act 1990 and the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992 (SI 1992/2832) for MODIFICATION of the planning obligation entered into on 22 June 2020 in connection with the planning permission referenced 19/00824/MAJ. The Authority is required to determine this application within EIGHT WEEKS of receipt under regulation 6 of SI 1992/2832. Where the Authority refuses or counter-offers, the applicant may appeal to the Planning Inspectorate under section 106B within SIX MONTHS of the decision notice.
1. APPLICANT PARTICULARS
| APPLICANT NAME | Hadley Bluemark Homes Limited |
| APPLICANT ADDRESS | Bluemark House, 14 Beckwith Park, Leeds LS18 4PE |
| TELEPHONE | 0113 887 4621 |
| planning@bluemarkhomes.co.uk | |
| CAPACITY | Original developer party to the s.106 obligation |
| PLANNING AGENT | Carrick Planning + Viability LLP of 6 St Pauls Square, Birmingham B3 1QA |
2. SITE AND PLANNING PERMISSION
| SITE ADDRESS | Land East of Walsden Brook, Todmorden OL14 7TP |
| PLANNING PERMISSION REFERENCE | 19/00824/MAJ |
| LOCAL PLANNING AUTHORITY | Calderdale Metropolitan Borough Council |
3. ORIGINAL s.106 OBLIGATION DETAILS.
(a) Date of completion of the s.106: 22 June 2020
(b) Parties to the s.106:
(1) Hadley Bluemark Homes Limited (Developer)
(2) The Lordship of Walsden Limited (Freeholder)
(3) Calderdale Metropolitan Borough Council (Local Planning Authority)
(c) Summary of the obligation:
The s.106 secures: (i) AFFORDABLE HOUSING — 30% of the 86 residential units (i.e. 26 units) at Local Housing Allowance rents with 70/30 social rent / shared-ownership tenure split, transferred to a Registered Provider before practical completion; (ii) EDUCATION CONTRIBUTION — GBP 412,000 to Calderdale MBC for primary school capacity, payable on commencement; (iii) HIGHWAYS — GBP 187,500 for traffic calming on Walsden Lane payable on occupation of 50th unit; (iv) OPEN SPACE — 0.7 hectares of public open space to adopted standard.
(d) Consideration paid (if any): Education contribution GBP 412,000 paid on commencement (15 January 2021). Open space transferred to LPA on 30 March 2024. Highways contribution NOT YET TRIGGERED (50th occupation not yet reached).
(a) Date of completion of the s.106: 22 June 2020
(b) Parties to the s.106:
(1) Hadley Bluemark Homes Limited (Developer)
(2) The Lordship of Walsden Limited (Freeholder)
(3) Calderdale Metropolitan Borough Council (Local Planning Authority)
(c) Summary of the obligation:
The s.106 secures: (i) AFFORDABLE HOUSING — 30% of the 86 residential units (i.e. 26 units) at Local Housing Allowance rents with 70/30 social rent / shared-ownership tenure split, transferred to a Registered Provider before practical completion; (ii) EDUCATION CONTRIBUTION — GBP 412,000 to Calderdale MBC for primary school capacity, payable on commencement; (iii) HIGHWAYS — GBP 187,500 for traffic calming on Walsden Lane payable on occupation of 50th unit; (iv) OPEN SPACE — 0.7 hectares of public open space to adopted standard.
(d) Consideration paid (if any): Education contribution GBP 412,000 paid on commencement (15 January 2021). Open space transferred to LPA on 30 March 2024. Highways contribution NOT YET TRIGGERED (50th occupation not yet reached).
4. MODIFICATION OR DISCHARGE SOUGHT.
(a) Type: Modification of the obligation (varied terms)
(b) Specific obligation targeted:
Clause 3.1 of the s.106 — affordable housing requirement of 30% of total residential units, comprising 26 units at Local Housing Allowance rents with 70/30 social rent / shared-ownership tenure split.
(c) Proposed variation:
Reduce the affordable housing requirement from 30% (26 units) to 18% (15 units), maintaining the 70/30 social rent / shared-ownership tenure split. The 11-unit reduction reflects post-2022 construction cost inflation and the materially reduced GDV of the development scheme on current market conditions. The applicant offers a compensatory payment of GBP 235,000 to the Calderdale Affordable Housing Reserve as commuted sum.
(d) Outcome sought: Reduce the financial or in-kind obligation
(a) Type: Modification of the obligation (varied terms)
(b) Specific obligation targeted:
Clause 3.1 of the s.106 — affordable housing requirement of 30% of total residential units, comprising 26 units at Local Housing Allowance rents with 70/30 social rent / shared-ownership tenure split.
(c) Proposed variation:
Reduce the affordable housing requirement from 30% (26 units) to 18% (15 units), maintaining the 70/30 social rent / shared-ownership tenure split. The 11-unit reduction reflects post-2022 construction cost inflation and the materially reduced GDV of the development scheme on current market conditions. The applicant offers a compensatory payment of GBP 235,000 to the Calderdale Affordable Housing Reserve as commuted sum.
(d) Outcome sought: Reduce the financial or in-kind obligation
5. REASON FOR APPLICATION.
(a) Primary reason: Financial unviability — the obligation renders the development financially unviable on current market conditions
(b) Narrative:
The development scheme as consented under planning permission 19/00824/MAJ became unviable by 2024 owing to (a) construction cost inflation between 2020 and 2024 averaging 36% across labour and materials (BCIS All-in TPI), (b) interest rate increases from 0.1% to 5.25% reducing residential GDV through reduced affordability, and (c) the Building Safety Act 2022 retrofit requirements adding an unanticipated GBP 1.4m to the cost base. The viability assessment by Maple Surveyors LLP dated 16 May 2026 demonstrates that on the as-consented 30% affordable housing requirement the scheme delivers a negative residual land value of (GBP 2.1m) against a benchmark land value of GBP 2.8m. The proposed 18% modification restores the scheme to a residual land value of GBP 2.85m and delivers 15 affordable units rather than zero (which is what a refusal of modification would deliver since the scheme would stall).
(a) Primary reason: Financial unviability — the obligation renders the development financially unviable on current market conditions
(b) Narrative:
The development scheme as consented under planning permission 19/00824/MAJ became unviable by 2024 owing to (a) construction cost inflation between 2020 and 2024 averaging 36% across labour and materials (BCIS All-in TPI), (b) interest rate increases from 0.1% to 5.25% reducing residential GDV through reduced affordability, and (c) the Building Safety Act 2022 retrofit requirements adding an unanticipated GBP 1.4m to the cost base. The viability assessment by Maple Surveyors LLP dated 16 May 2026 demonstrates that on the as-consented 30% affordable housing requirement the scheme delivers a negative residual land value of (GBP 2.1m) against a benchmark land value of GBP 2.8m. The proposed 18% modification restores the scheme to a residual land value of GBP 2.85m and delivers 15 affordable units rather than zero (which is what a refusal of modification would deliver since the scheme would stall).
6. FIVE-YEAR ELIGIBILITY CONFIRMATION (s.106A(2)).
Section 106A(2) of the Town and Country Planning Act 1990 confers the right to apply for modification or discharge only after the expiry of the period of FIVE YEARS beginning with the date on which the obligation was completed. Earlier applications are at the LPA's discretion as voluntary variations.
(a) Five-year test satisfied: YES — at least five years have elapsed since completion of the s.106 obligation
(b) Calculation:
s.106 completed 22 June 2020. Five-year window expired on 22 June 2025. This application is dated 15 June 2026 — within the eligible window. The s.106A right is freely available.
Section 106A(2) of the Town and Country Planning Act 1990 confers the right to apply for modification or discharge only after the expiry of the period of FIVE YEARS beginning with the date on which the obligation was completed. Earlier applications are at the LPA's discretion as voluntary variations.
(a) Five-year test satisfied: YES — at least five years have elapsed since completion of the s.106 obligation
(b) Calculation:
s.106 completed 22 June 2020. Five-year window expired on 22 June 2025. This application is dated 15 June 2026 — within the eligible window. The s.106A right is freely available.
7. HITCHINS VIABILITY ANALYSIS — TCPA 1990 s.106A.
The leading authority on viability-based s.106A modification is R (Robert Hitchins Limited) v Worcestershire County Council [2014] EWHC 4070 (Admin). Hutchings J set out the matters relevant to the no-useful-purpose and the modification grounds — the burden is on the applicant to demonstrate by credible expert evidence that the obligation is unviable or has become more onerous than originally contemplated. The court emphasised the need for INDEPENDENT viability evidence and open-book disclosure where reasonable.
(a) Viability assessor: Maple Surveyors LLP — Anthony Hodgkin MRICS (Director, Development Consultancy)
(b) Open-book disclosure to LPA: YES — full open-book disclosure of viability assessment, supporting cost plan and evidence base, subject to commercial confidentiality protocol
(c) Developer return target (% on GDV / IRR): 17.5% on GDV (industry-standard benchmark for medium-risk residential schemes)
(d) Benchmark Land Value methodology: RICS Guidance Note on Financial Viability in Planning (current edition) benchmark methodology
Hitchins framework: the LPA must consider (i) whether the obligation continues to serve a useful purpose (s.106A(3)(a)); (ii) if so, whether the obligation could be modified to continue to serve the purpose equally well (s.106A(3)(b)); (iii) the up-to-date viability picture; (iv) the policy context and any subsequent local plan changes; (v) the proportionality of the proposed modification to the changed circumstances.
Viability narrative:
Per Hitchins [2014] EWHC 4070 (Admin) the LPA must assess the up-to-date viability picture with credible expert evidence. Maple Surveyors LLP report dated 16 May 2026 (full report enclosed) provides residual valuation per current RICS Guidance Note methodology. Open-book disclosure offered to the LPA viability consultant under standard commercial confidentiality protocol. The viability gap (negative GBP 2.1m residual land value) is substantial and cannot be closed by minor design economies. The 18% modified affordable housing requirement is the minimum sustainable variation to deliver the scheme.
The leading authority on viability-based s.106A modification is R (Robert Hitchins Limited) v Worcestershire County Council [2014] EWHC 4070 (Admin). Hutchings J set out the matters relevant to the no-useful-purpose and the modification grounds — the burden is on the applicant to demonstrate by credible expert evidence that the obligation is unviable or has become more onerous than originally contemplated. The court emphasised the need for INDEPENDENT viability evidence and open-book disclosure where reasonable.
(a) Viability assessor: Maple Surveyors LLP — Anthony Hodgkin MRICS (Director, Development Consultancy)
(b) Open-book disclosure to LPA: YES — full open-book disclosure of viability assessment, supporting cost plan and evidence base, subject to commercial confidentiality protocol
(c) Developer return target (% on GDV / IRR): 17.5% on GDV (industry-standard benchmark for medium-risk residential schemes)
(d) Benchmark Land Value methodology: RICS Guidance Note on Financial Viability in Planning (current edition) benchmark methodology
Hitchins framework: the LPA must consider (i) whether the obligation continues to serve a useful purpose (s.106A(3)(a)); (ii) if so, whether the obligation could be modified to continue to serve the purpose equally well (s.106A(3)(b)); (iii) the up-to-date viability picture; (iv) the policy context and any subsequent local plan changes; (v) the proportionality of the proposed modification to the changed circumstances.
Viability narrative:
Per Hitchins [2014] EWHC 4070 (Admin) the LPA must assess the up-to-date viability picture with credible expert evidence. Maple Surveyors LLP report dated 16 May 2026 (full report enclosed) provides residual valuation per current RICS Guidance Note methodology. Open-book disclosure offered to the LPA viability consultant under standard commercial confidentiality protocol. The viability gap (negative GBP 2.1m residual land value) is substantial and cannot be closed by minor design economies. The 18% modified affordable housing requirement is the minimum sustainable variation to deliver the scheme.
8. NPPF PARAGRAPH 58 VIABILITY ASSESSMENT + RICS GUIDANCE NOTE.
Paragraph 58 of the National Planning Policy Framework (2023 revision, retained in 2024 revision) provides that where the development requires a viability assessment, the assessment must comply with national planning practice guidance and the RICS Guidance Note on Financial Viability in Planning. The Guidance Note sets out the professional standard for residual valuation methodology, benchmark land value (Existing Use Value plus premium being the long-established methodology), gross development value, cost inputs (construction, professional fees, finance, marketing) and developer return.
(a) RICS Guidance Note compliance:
The Maple Surveyors LLP viability assessment complies with the current edition of the RICS Guidance Note on Financial Viability in Planning. Benchmark Land Value adopted is GBP 2.8m, computed using Existing Use Value plus appropriate premium (industrial sui generis to residential consented uplift). Construction costs verified against BCIS All-in Tender Price Index and three contractor estimates obtained 2026. Gross Development Value verified against three comparable Calderdale residential schemes 2024-2026. Developer return 17.5% on GDV consistent with mid-market residential risk profile.
(b) Alternative solutions explored:
Five alternative solutions were explored before settling on the 30% to 18% modification: (a) phased payment of affordable housing contribution over 7 years — rejected by LPA as inconsistent with delivery timing; (b) deferred trigger on affordable housing to last 11 units — rejected on viability and cashflow grounds; (c) cost-sharing with Calderdale MBC via Homes England grant — Homes England declined; (d) alternative tenure mix moving from 70/30 to 100% shared ownership — modelled but does not close the gap; (e) reduction to zero affordable with commuted sum of GBP 1.6m — modelled but does not deliver the policy objective.
NPPF 58 narrative:
Per NPPF paragraph 58 the assessment complies with national planning practice guidance and the RICS Guidance Note. The applicant invites the LPA viability consultant (typically appointed at applicant cost in the standard NPPF arrangement) to review the open-book evidence and confirm or counter-propose. The modification is materially less restrictive than the no-affordable-housing alternative and substantially less than scheme collapse — the proportionate outcome on policy and viability principles.
Paragraph 58 of the National Planning Policy Framework (2023 revision, retained in 2024 revision) provides that where the development requires a viability assessment, the assessment must comply with national planning practice guidance and the RICS Guidance Note on Financial Viability in Planning. The Guidance Note sets out the professional standard for residual valuation methodology, benchmark land value (Existing Use Value plus premium being the long-established methodology), gross development value, cost inputs (construction, professional fees, finance, marketing) and developer return.
(a) RICS Guidance Note compliance:
The Maple Surveyors LLP viability assessment complies with the current edition of the RICS Guidance Note on Financial Viability in Planning. Benchmark Land Value adopted is GBP 2.8m, computed using Existing Use Value plus appropriate premium (industrial sui generis to residential consented uplift). Construction costs verified against BCIS All-in Tender Price Index and three contractor estimates obtained 2026. Gross Development Value verified against three comparable Calderdale residential schemes 2024-2026. Developer return 17.5% on GDV consistent with mid-market residential risk profile.
(b) Alternative solutions explored:
Five alternative solutions were explored before settling on the 30% to 18% modification: (a) phased payment of affordable housing contribution over 7 years — rejected by LPA as inconsistent with delivery timing; (b) deferred trigger on affordable housing to last 11 units — rejected on viability and cashflow grounds; (c) cost-sharing with Calderdale MBC via Homes England grant — Homes England declined; (d) alternative tenure mix moving from 70/30 to 100% shared ownership — modelled but does not close the gap; (e) reduction to zero affordable with commuted sum of GBP 1.6m — modelled but does not deliver the policy objective.
NPPF 58 narrative:
Per NPPF paragraph 58 the assessment complies with national planning practice guidance and the RICS Guidance Note. The applicant invites the LPA viability consultant (typically appointed at applicant cost in the standard NPPF arrangement) to review the open-book evidence and confirm or counter-propose. The modification is materially less restrictive than the no-affordable-housing alternative and substantially less than scheme collapse — the proportionate outcome on policy and viability principles.
9. NO USEFUL PURPOSE GROUND — TCPA 1990 s.106A(3)(a).
Section 106A(3)(a) provides for discharge of the obligation on the ground that the obligation no longer serves a useful purpose. The leading authority on the interpretation of obligations and the no-useful-purpose ground is Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56. The Supreme Court held that planning obligations are construed against the background of the matrix of fact at the date of completion, applying the modern contractual approach (Investors Compensation Scheme v West Bromwich BS [1998] 1 WLR 896).
Mid-Counties Co-Op v Wyre Forest DC [2009] EWHC 964 (Admin) sets out the scope of s.106 enforcement and the boundary between LPA enforcement discretion and the obligor's modification rights. The London Borough of Lambeth v SS [2024] is the most recent appellate authority on LPA modification refusal.
(a) Factual matrix at the date of completion:
At the date of completion (22 June 2020) the Calderdale Local Plan 2017-2033 was in force with Policy CT4 requiring 30% affordable housing on major residential schemes subject to viability. The Coronavirus Act 2020 emergency legislation was active. Construction cost inflation BCIS index was 102.4 (Q2 2020 baseline). Bank Rate was 0.1%. GDV per square metre for Calderdale residential was approximately GBP 2,750.
(b) Purpose of the obligation when made:
The 30% affordable housing requirement was intended to deliver 26 units of low-cost rent and shared-ownership housing in line with Calderdale Local Plan Policy CT4. The purpose was to address the documented affordable housing need within Calderdale (Strategic Housing Market Assessment 2018 — annual shortfall of approximately 165 affordable units across the Borough).
(c) Changed circumstances since completion:
Material changes between June 2020 and June 2026: (a) BCIS index has risen from 102.4 to 139.1 (a 36% increase); (b) Bank Rate has risen from 0.1% to 5.25% reducing residential GDV through affordability constraints; (c) Building Safety Act 2022 has imposed additional fire safety retrofit costs averaging GBP 18,000 per unit for schemes over 11m; (d) Calderdale 2025 Strategic Housing Market Assessment update notes the annual shortfall has reduced to 142 units (Council interim policy guidance prioritises delivery over percentages on stalled sites).
No useful purpose narrative:
Per Aberdeen City Council v Stewart Milne [2011] UKSC 56 the obligation is construed against the matrix of fact at the date of completion. Per Mid-Counties Co-Op v Wyre Forest DC [2009] EWHC 964 the LPA must engage with the changed circumstances on a structured basis. Per London Borough of Lambeth v SS [2024] the LPA cannot refuse modification merely because the original obligation reflects sensible historic policy — it must engage with the present viability and policy position. The 30% requirement no longer serves a useful purpose in the form originally agreed because (i) it delivers zero affordable units if the scheme stalls; (ii) the modified 18% delivers 15 units which is materially better than zero; (iii) the supplementary commuted sum of GBP 235,000 funds further affordable provision elsewhere in Calderdale.
Section 106A(3)(a) provides for discharge of the obligation on the ground that the obligation no longer serves a useful purpose. The leading authority on the interpretation of obligations and the no-useful-purpose ground is Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56. The Supreme Court held that planning obligations are construed against the background of the matrix of fact at the date of completion, applying the modern contractual approach (Investors Compensation Scheme v West Bromwich BS [1998] 1 WLR 896).
Mid-Counties Co-Op v Wyre Forest DC [2009] EWHC 964 (Admin) sets out the scope of s.106 enforcement and the boundary between LPA enforcement discretion and the obligor's modification rights. The London Borough of Lambeth v SS [2024] is the most recent appellate authority on LPA modification refusal.
(a) Factual matrix at the date of completion:
At the date of completion (22 June 2020) the Calderdale Local Plan 2017-2033 was in force with Policy CT4 requiring 30% affordable housing on major residential schemes subject to viability. The Coronavirus Act 2020 emergency legislation was active. Construction cost inflation BCIS index was 102.4 (Q2 2020 baseline). Bank Rate was 0.1%. GDV per square metre for Calderdale residential was approximately GBP 2,750.
(b) Purpose of the obligation when made:
The 30% affordable housing requirement was intended to deliver 26 units of low-cost rent and shared-ownership housing in line with Calderdale Local Plan Policy CT4. The purpose was to address the documented affordable housing need within Calderdale (Strategic Housing Market Assessment 2018 — annual shortfall of approximately 165 affordable units across the Borough).
(c) Changed circumstances since completion:
Material changes between June 2020 and June 2026: (a) BCIS index has risen from 102.4 to 139.1 (a 36% increase); (b) Bank Rate has risen from 0.1% to 5.25% reducing residential GDV through affordability constraints; (c) Building Safety Act 2022 has imposed additional fire safety retrofit costs averaging GBP 18,000 per unit for schemes over 11m; (d) Calderdale 2025 Strategic Housing Market Assessment update notes the annual shortfall has reduced to 142 units (Council interim policy guidance prioritises delivery over percentages on stalled sites).
No useful purpose narrative:
Per Aberdeen City Council v Stewart Milne [2011] UKSC 56 the obligation is construed against the matrix of fact at the date of completion. Per Mid-Counties Co-Op v Wyre Forest DC [2009] EWHC 964 the LPA must engage with the changed circumstances on a structured basis. Per London Borough of Lambeth v SS [2024] the LPA cannot refuse modification merely because the original obligation reflects sensible historic policy — it must engage with the present viability and policy position. The 30% requirement no longer serves a useful purpose in the form originally agreed because (i) it delivers zero affordable units if the scheme stalls; (ii) the modified 18% delivers 15 units which is materially better than zero; (iii) the supplementary commuted sum of GBP 235,000 funds further affordable provision elsewhere in Calderdale.
10. PINS s.106B APPEAL ROUTE — TCPA 1990 s.106B + SI 1992/2832.
Where the LPA refuses or fails to determine the application, or counter-offers on terms unacceptable to the applicant, an appeal lies to the Planning Inspectorate under section 106B of the Town and Country Planning Act 1990. The s.106B appeal deadline is SIX MONTHS from the date of the LPA decision notice (a longer window than the standard s.78 planning appeal deadline). R (Renfree) v Cornwall Council [2018] EWHC 685 addresses the interaction between viability evidence and the five-year statutory window on appeal.
(a) Six-month appeal deadline: the appeal must be received by PINS within SIX MONTHS of the LPA decision notice (regulation 7 SI 1992/2832).
(b) Procedure preference: Hearing — appropriate where viability expert credibility is in issue
(c) Costs application: the appellant may apply for costs on the standard PINS Costs Award Guidance test — was the LPA's conduct unreasonable in such a way as to cause the appellant unnecessary or wasted expense.
Inspector procedural guide 2026: two versions of the PINS Procedural Guide apply — pre-31 March 2026 (standard) and post-1 April 2026 (expedited reforms). The relevant version depends on the date of the underlying application. The Inspector will apply the same s.106A test as the LPA — useful purpose / modification to serve the purpose equally well — with fresh evidence.
PINS appeal narrative:
If the LPA refuses or counter-offers on unacceptable terms (typically a higher percentage requirement), the applicant will lodge a s.106B appeal within the six-month appeal window. Hearing procedure is preferred — the case turns on the Inspector's assessment of competing viability methodologies (applicant viability surveyor + LPA viability consultant) and a structured discussion before the Inspector is appropriate. R (Renfree) v Cornwall Council [2018] EWHC 685 confirms the Inspector's power to engage with the viability evidence on appeal. Cost application under PCN1 will be prepared if the LPA conduct is unreasonable.
Where the LPA refuses or fails to determine the application, or counter-offers on terms unacceptable to the applicant, an appeal lies to the Planning Inspectorate under section 106B of the Town and Country Planning Act 1990. The s.106B appeal deadline is SIX MONTHS from the date of the LPA decision notice (a longer window than the standard s.78 planning appeal deadline). R (Renfree) v Cornwall Council [2018] EWHC 685 addresses the interaction between viability evidence and the five-year statutory window on appeal.
(a) Six-month appeal deadline: the appeal must be received by PINS within SIX MONTHS of the LPA decision notice (regulation 7 SI 1992/2832).
(b) Procedure preference: Hearing — appropriate where viability expert credibility is in issue
(c) Costs application: the appellant may apply for costs on the standard PINS Costs Award Guidance test — was the LPA's conduct unreasonable in such a way as to cause the appellant unnecessary or wasted expense.
Inspector procedural guide 2026: two versions of the PINS Procedural Guide apply — pre-31 March 2026 (standard) and post-1 April 2026 (expedited reforms). The relevant version depends on the date of the underlying application. The Inspector will apply the same s.106A test as the LPA — useful purpose / modification to serve the purpose equally well — with fresh evidence.
PINS appeal narrative:
If the LPA refuses or counter-offers on unacceptable terms (typically a higher percentage requirement), the applicant will lodge a s.106B appeal within the six-month appeal window. Hearing procedure is preferred — the case turns on the Inspector's assessment of competing viability methodologies (applicant viability surveyor + LPA viability consultant) and a structured discussion before the Inspector is appropriate. R (Renfree) v Cornwall Council [2018] EWHC 685 confirms the Inspector's power to engage with the viability evidence on appeal. Cost application under PCN1 will be prepared if the LPA conduct is unreasonable.
11. DOCUMENTS ENCLOSED. The applicant encloses:
(a) Copy of the original s.106 agreement / unilateral undertaking dated 22 June 2020;
(b) Copy of the planning permission referenced 19/00824/MAJ;
(c) Site location plan (1:1250 or 1:2500) with red-line edge to the site;
(d) Draft deed of variation / discharge in the form sought;
(e) Viability assessment / financial evidence (where relied on, prepared per RICS Guidance Note);
(f) Statement of changed circumstances (where the no-useful-purpose ground is relied on);
(g) Application fee per LPA scale.
(a) Copy of the original s.106 agreement / unilateral undertaking dated 22 June 2020;
(b) Copy of the planning permission referenced 19/00824/MAJ;
(c) Site location plan (1:1250 or 1:2500) with red-line edge to the site;
(d) Draft deed of variation / discharge in the form sought;
(e) Viability assessment / financial evidence (where relied on, prepared per RICS Guidance Note);
(f) Statement of changed circumstances (where the no-useful-purpose ground is relied on);
(g) Application fee per LPA scale.
12. DECLARATION. The applicant confirms that the particulars set out in this application and the supporting evidence are true and correct to the best of the applicant's knowledge and belief. The applicant acknowledges that the LPA has EIGHT WEEKS from the date of receipt of the application to determine it under regulation 6 of SI 1992/2832, and that the applicant has a right of appeal to the Planning Inspectorate under section 106B within SIX MONTHS of the LPA decision notice. The applicant invites the Authority to engage constructively before final determination.
APPLICANT
Hadley Bluemark Homes Limited
Through agent: Carrick Planning + Viability LLP
Date: ____________________
Available as a print-ready PDF or an editable Microsoft Word (.docx) file.
What Is a Section 106 Modification Application?
A section 106 planning obligation (or "section 106 agreement") is a binding obligation entered into by a person interested in land, owed to the Local Planning Authority, to do or refrain from doing acts, or to make payments. Section 106 obligations are typically used to secure planning gain — affordable housing percentage, highway works, education contributions, open space and amenity provision, viability mitigation. The obligation runs with the land and binds successors in title under section 106(3) of the TCPA 1990. The agreement is normally registered as a local land charge.
After FIVE YEARS from the date of completion of the original obligation, the person against whom the obligation is enforceable may apply to the LPA for the obligation: (a) to be DISCHARGED on the ground that it no longer serves a useful purpose under section 106A(3)(a); or (b) to be MODIFIED to continue to serve a useful purpose, in particular if it has become more onerous than originally contemplated, under section 106A(3)(b). The five-year window runs from the date of completion of the obligation, not from the date of grant of the related planning permission. The LPA has EIGHT WEEKS from receipt to determine under SI 1992/2832 reg 6.
Where the LPA refuses or counter-offers, the applicant may appeal to the Planning Inspectorate (PINS) under section 106B within SIX MONTHS of the date of the LPA decision notice — much longer than the standard section 78 planning appeal deadline of six weeks. R (Robert Hitchins) v Worcestershire CC [2014] EWHC 4070 (Admin) is the leading English authority on the matters relevant to the no-useful-purpose ground. The Supreme Court in Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56 sets the principle of contractual interpretation of planning obligations — construed against the matrix of fact at the date of completion. Mid-Counties Co-Op v Wyre Forest DC [2009] EWHC 964 (Admin) addresses the scope of section 106 enforcement. NPPF paragraph 58 governs the viability methodology, supplemented by the RICS Guidance Note on Financial Viability in Planning across the United Kingdom planning profession.
What's Covered in This Template
Our United Kingdom section 106 modification application template builds a structured application an English Local Planning Authority can validate quickly — applicant identification, site and planning permission reference, the s.106 agreement details, the ground relied on (no useful purpose or modification to continue to serve), the viability evidence and the appeal route signposting.
Applicant Identity + Capacity
Records the applicant — original signatory to the s.106 agreement, successor in title under section 106(3), developer or landowner — and the interest in the land relied on for the application across the British planning regime.
Site + Planning Permission + s.106 Agreement Reference
Site address, planning permission reference, s.106 agreement date, party identification on the s.106 agreement, the LPA and the date of completion of the original obligation (the five-year clock starts here).
Five-Year Window Auto-Calculated
Calculates whether the application is within the s.106A window — five years must have elapsed from the date of completion of the original obligation. The window runs from completion, not from the grant of related planning permission.
Two-Ground Switch — Discharge vs Modification
Auto-adjusts the application framing depending on whether the application is for full discharge under s.106A(3)(a) (no useful purpose) or for modification under s.106A(3)(b) (the obligation can be modified to continue to serve its purpose equally well).
Expert: No-Useful-Purpose Ground (Robert Hitchins)
Engages R (Robert Hitchins) v Worcestershire CC [2014] EWHC 4070 (Admin) on the no-useful-purpose ground — the obligation has become redundant (underlying highway scheme superseded; affordable housing contribution unviable; development completed in a way that extinguishes the original purpose).
Expert: Modification-to-Continue-to-Serve Ground
Engages section 106A(3)(b) — the obligation can be modified to continue to serve its purpose equally well. Typical examples: reducing the affordable housing percentage on viability grounds while maintaining the principle; varying the timing of contribution payments; varying highway works specification.
Expert: NPPF Para 58 + RICS Viability Methodology
Where the application turns on viability, NPPF paragraph 58 (2023 revision, retained 2024) requires the assessment to comply with national planning practice guidance and the RICS Guidance Note on Financial Viability in Planning. The expert section structures the viability case.
Expert: Aberdeen v Stewart Milne Contractual Interpretation
Engages the Supreme Court in Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56 — planning obligations are construed against the background of the matrix of fact at the date of completion, applying the modern contractual approach (Investors Compensation Scheme v West Bromwich BS).
Expert: Mid-Counties Co-Op Enforcement Scope
Engages Mid-Counties Co-Op v Wyre Forest DC [2009] EWHC 964 (Admin) on the scope of section 106 enforcement — the obligation must be construed by reference to its planning purpose; the LPA cannot expand enforcement beyond what was secured by the agreement.
Expert: CIL Regulations r.122 Three Statutory Tests
Engages the three statutory tests under regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010/948) — necessary; directly related; fairly and reasonably related in scale and kind. Section 106 obligations must satisfy r.122 to be lawful.
Expert: Six-Month s.106B PINS Appeal
Where the LPA refuses or counter-offers, the applicant may appeal to PINS under section 106B within SIX MONTHS — materially longer than the standard six-week s.78 planning appeal deadline. The expert section signposts the appeal route.
How to Apply for s.106 Modification
Follow these steps to produce a well-structured section 106 modification or discharge application an English LPA can validate and determine within the eight-week statutory window.
- 1
Confirm Five Years Have Elapsed from Completion
The five-year window under section 106A runs from the date of COMPLETION of the original obligation — not from the date of grant of the related planning permission. The completion date is shown on the s.106 agreement itself. Where five years have not yet elapsed, the application is premature.
- 2
Identify the Ground Relied On
Section 106A(3)(a) — the obligation no longer serves a useful purpose (full discharge); section 106A(3)(b) — the obligation can be modified to continue to serve its purpose equally well. The two grounds are independent — an application may rely on one or both.
- 3
Set Out the Justification
For no-useful-purpose: why has the obligation become redundant? Robert Hitchins examples — superseded highway scheme; unviable affordable housing contribution; completed development that extinguishes the purpose. For modification: what is the proposed variation and how does it continue to serve the purpose?
- 4
Build the Viability Case (Expert)
Where the application turns on viability, NPPF paragraph 58 requires compliance with the national planning practice guidance and the RICS Guidance Note on Financial Viability in Planning. The viability assessment should be transparent and proportionate. Independent viability review may be required by the LPA.
- 5
Apply the Aberdeen v Stewart Milne Interpretation (Expert)
Where the application turns on the meaning of the s.106 agreement itself, the Supreme Court in Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56 applies — planning obligations are construed against the matrix of fact at the date of completion, using the modern contractual approach.
- 6
Address the CIL Reg 122 Compliance (Expert)
Where the underlying obligation does not satisfy the three statutory tests under regulation 122 of the Community Infrastructure Levy Regulations 2010 (necessary; directly related; fairly and reasonably related in scale and kind) the obligation is not lawful — a powerful supporting argument for discharge.
- 7
Submit to the LPA + Wait for Determination
Submit the application to the English Local Planning Authority. The LPA has EIGHT WEEKS from receipt to determine under SI 1992/2832 reg 6, with the option of an agreed extension. The LPA may agree, refuse or counter-offer (agreeing modification on different terms).
- 8
Engage the Six-Month PINS Appeal if Needed (Expert)
Where the LPA refuses or counter-offers, the applicant may appeal to the Planning Inspectorate (PINS) under section 106B within SIX MONTHS — much longer than the standard six-week section 78 planning appeal deadline. The appeal is determined by written representations / hearing / inquiry.
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Legal Considerations — s.106 Modification
Section 106 modification is governed by United Kingdom planning legislation as devolved to England. TCPA 1990 ss.106, 106A and 106B are the substantive provisions; SI 1992/2832 is the operational regime; CIL Regulations 2010 r.122 imposes the lawfulness test.
This template is for general information and does not constitute legal advice. The Royal Town Planning Institute (RTPI), the Royal Institution of Chartered Surveyors (RICS) and planning solicitors regulated by the Solicitors Regulation Authority advise on complex s.106 modification applications. The Planning Inspectorate has the final word on appeal under s.106B. Complex viability cases warrant specialist independent viability review.
Reviewed for England (United Kingdom)
Statutory Framework — TCPA 1990 s.106 + s.106A + s.106B
Section 106 of the Town and Country Planning Act 1990 establishes the planning obligation regime — a binding obligation entered into by a person interested in land, owed to the LPA. Section 106(3) confirms that the obligation runs with the land. Section 106A governs modification and discharge after five years. Section 106B sets the appeal route. SI 1992/2832 (the Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992) is the operational instrument — reg 6 sets the eight-week determination period.
The Two Grounds — s.106A(3)(a) + s.106A(3)(b)
Section 106A(3)(a) provides for discharge where the obligation no longer serves a useful purpose. Section 106A(3)(b) provides for modification where the obligation can be modified to continue to serve its purpose equally well. The two grounds are independent. An application may rely on one or both. R (Robert Hitchins) v Worcestershire CC [2014] EWHC 4070 (Admin) is the leading English authority on the matters relevant to the no-useful-purpose ground.
Aberdeen v Stewart Milne — Contractual Interpretation
The Supreme Court in Aberdeen City Council v Stewart Milne Group Ltd [2011] UKSC 56 sets the principle for interpretation of planning obligations — they are construed against the background of the matrix of fact at the date of completion, applying the modern contractual approach in Investors Compensation Scheme v West Bromwich BS [1998] 1 WLR 896. The decision is the leading United Kingdom authority on the meaning of s.106 obligations.
Mid-Counties Co-Op — Enforcement Scope
Mid-Counties Co-Op v Wyre Forest DC [2009] EWHC 964 (Admin) sets the scope of section 106 enforcement — the obligation must be construed by reference to its planning purpose; the LPA cannot expand enforcement beyond what was secured by the agreement. The decision is relevant to modification applications where the LPA seeks to retain an obligation beyond its proper planning purpose.
NPPF Para 58 + RICS Viability Guidance Note
NPPF paragraph 58 (2023 revision, retained in the 2024 revision) requires that where development requires a viability assessment, the assessment must comply with national planning practice guidance and the RICS Guidance Note on Financial Viability in Planning. The guidance covers transparency, proportionality and independent review. Viability is most commonly the live issue on modification of affordable-housing or contribution-payment obligations.
CIL Regulations r.122 — Three Statutory Tests
Regulation 122 of the Community Infrastructure Levy Regulations 2010 (SI 2010/948) imposes three statutory tests on section 106 obligations: (i) necessary to make the development acceptable in planning terms; (ii) directly related to the development; (iii) fairly and reasonably related in scale and kind. Where an obligation does not satisfy r.122 it is not lawful — a powerful supporting argument for discharge under s.106A(3)(a). London Borough of Lambeth v SS [2024] addresses the appellate review of modification refusal on r.122 grounds.
Frequently Asked Questions
Build Your s.106 Modification Application
Produce a clear, statute-cited application an English Local Planning Authority can validate and determine within the eight-week window. Whether the application is for full discharge under s.106A(3)(a) (no useful purpose — Robert Hitchins) or modification under s.106A(3)(b) (modification to continue to serve), the template structures the five-year window analysis, the Aberdeen v Stewart Milne contractual interpretation, the NPPF paragraph 58 + RICS viability methodology, the CIL Regulations r.122 lawfulness test and the six-month s.106B PINS appeal route across the United Kingdom planning jurisdiction.
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