Send a letter confirming that the legal agreement has been fully respected. The modification and performance of the obligations of § 106 are governed by § 106A, which allows changes: by agreement at any time between the authority and the persons against whom the obligations are enforceable. As soon as an application has been lodged, Article 106A (6) governs the decisions that the authority may take. A complaints procedure is provided for in section 106B, the procedure of which is governed by the Planning (Amendment and Enforcement of Planning Obligations) Regulations 1992. With respect to proponents` contributions, the Community Infrastructure Tax (CIC) has not replaced section 106 agreements, and the introduction of the ICA has resulted in a tightening of section 106 testing. As regards the contributions of promoters, the S106 agreements should focus on mitigating the specific risks required for a new development. CIL is designed to respond to the broader impact of development. There should be no circumstances in which a developer pays CIL and S106 for the same infrastructure in connection with the same development. Section 106 itself does not say who “shall” sign an agreement under section 106. It simply says that “anyone interested in the land” can do it. At first glance, there is no legal obligation to bind all parties who have interests in the point of application. If changes are made to building permits under section 73 of the Planning Act 1990, a new autonomous building permit is obtained, which must be bound by a supplementary agreement to the “original” agreement in section 106. Otherwise, unless the original agreement is drafted to reflect future amendments or changes to the regulations, the applicant may implement its consent under section 73 without obligations under section 106.

When a landowner complies with obligations that only bite after the demolition of an existing building, little seems to have to gain by insisting that existing professional tenants sign section 106. It is unlikely that liability will arise as long as they have an interest in the site, so (subject to the exact wording of the agreement) they would be safe before they were even really there. Ashfords has extensive experience drafting and negotiating Section 106 contracts on behalf of developers, local planning authorities, affordable housing providers, landowners and mortgages. Further limits on what can be guaranteed by section 106 obligations were obtained in 2010 in the form of the Community Infrastructure Charge Regulations, 2010 (“CIL Regulations”). In general, the infrastructure to be financed by CIL should not also be secured by obligations under Article 106. It was therefore assumed that the introduction of the CIL would significantly reduce the duration and complexity of commitments. The CIL regulation: include in the legislation the tests previously set out in the guidelines, which is a legitimate obligation (Rule 122); and limit the type and number of section contributions that can be guaranteed for infrastructure (the pooling restriction in section 123 of the Regulations). Rule 122 provides that an obligation may be invoked as a ground for granting a building permit only if that is the reason for the granting of a building permit: the method of carrying out an agreement under § 106 is also included in the section itself, which provides for injunctions and also the authority that enters the land to carry out work itself, and calculates the cost of the person against whom the agreement is enforceable.

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