A number of people have asked me about the procedure to vary section 106 agreements following publication, by CLG, of the new proposals to allow much more recent 106 agreements to be varied under the application procedure.

It has always been the case that a variation could be negotiated and agreed by deed, but the application process has been reserved only for s 106 agreements which are at least 5 years old. Under the new proposals (under consultation until 8 October), the Government suggests that all s 106 agreements which have been completed on or before 6 April 2010 can be the subject of an application under s 106A.

As well as meaning that you would not need the agreement of the local planning authority (you can appeal if your application is rejected), this also means that you can bring about a variation without involving, as parties, all those against whom the original 106 can be enforced. Often, this factor means that even where the developer and LPA agree the terms of a variation, the practicalties of having everyone sign a deed of variation are such that a variation cannot be achieved. The application process avoids this - although note that you cannot impose an additional burden on another party so although the relaxation of obligations can be achieved, "swapping" them for something additional, may not be possible under the procedure.

If you are considering making an application under s 106A, the best course is to submit, along with the application, a "mark up" of the original 106 showing the variations requested. If the application is successful, then the original 106 is amended without the need for a deed, so that mark up becomes the new form.