I had a conversation this morning with one of my real estate partners about the possible implications of the new provisions to modify affordable housing requirements in s 106 agreements. It should be noted that the person who is able to make an application under the new section is "a person against whom the affordable housing requirement is enforceable". The guidance speaks in terms of "the developer" as the likely applicant and the procedural notes in the guidance advise that all signatories to the s 106 agreement should be notified. But the role and position of the landowner, as distinct from the developer, should not be overlooked.

It is worth remembering that "the developer" (in the sense of the person most likely to make an application under the new provisions) may not necessarily be someone entitled to do so. To be a person against whom the obligation is enforceable, the developer would either have to be the original landowning covenantor, or be a person who derives title from that original party. There are a number of potential arrangements involving landowner and developer, under which the developer may take a site forward (following the grant of planning permission) - not all will of necessity mean that the developer falls into the category of "person deriving title", not least for land not currently under development - which may be where a modification of affordable housing requirements may fall to be discussed.

It may be that the landowner may have to make the application  - although costs may be met by the developer. In fact, there will be many cases where the landowner may wish to make such an application depending on the nature and terms of the agreement between the landowner and the developer. One may have more to gain than the other.