In August 2012 we highlighted the Government’s proposal to relax the circumstances in which s.106 planning obligations could be modified or discharged. The aim is to boost the economic recovery by kick starting developments burdened by planning obligations which render them unviable.
Section 106A of the Town and Country Planning Act 1990 currently permits applications to modify or discharge planning obligations (with the right of appeal) only where the obligation is over five years old. In all other circumstances modification or discharge relies upon the co-operation of the local planning authority.
The Town and Country Planning (Modification and Discharge of Planning Obligations) (Amendment) (England) Regulations 2013 will come into force on 28th February 2013. These Regulations will enable applications to be made to modify or discharge planning obligations entered into on or before 6 April 2010.
Applications can be made at any time after 28 March 2013 provided the obligation is not five years old before then (if it is then an application can be made anyway). There will be a right of appeal against any refusal or non-determination of an application.
The new provision will sit alongside the provisions in the Growth and Infrastructure Bill which will enable applications to be made for the reduction or removal of section 106 obligations relating to affordable housing on the grounds of economic viability (with an associated right of appeal). The Bill is currently before the House of Lords and should receive Royal Assent by the middle of this year.