It has always been the case that a modification could be made by deed, but the application process has been reserved only for obligations which are at least five years old. So by having a more recent cut-off date (even though we question the selection of the 6 April 2010 date), much greater use of the procedure may be made.

There are two clear benefits of the application procedure. Firstly, no deed is required, so there is no need to “join in” all parties against whom the original can be enforced. Currently, this factor often means that even where the developer and LPA agree the terms of a variation, the practicalities of having everyone sign 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 (ie, other than the applicant). Even though the relaxation of obligations can be achieved, "swapping" them for something additional, may not be possible. If you are making an application under section 106A, the best course is to submit a "mark-up" of the original 106 showing the variations requested. If the application is successful, which It should be if the LPA is convinced that the old obligation “no longer serves a useful purpose” or that the purpose could be served equally well after the variation, then the original 106 is amended without the need for a deed, so that mark up becomes the new form. The second benefit is the availability of the appeal procedure.

Surprisingly little use has been made of the procedure to date, so there are limited reference points on “no longer serves a useful purpose”.