Negotiating S106 Agreements

We assess the economic viability of affordable housing section 106 contributions and their impact on the development for Local Planning Authorities, developers and land owners.

Both the Local Planning Authorities and National Planning Policy Framework state that affordable housing can only be provided if it is economically viable to do so; providing appropriate and evidenced statements about its viability is the first step in negotiating contributions under section 106.

These negotiations are often essential to ensuring that a building project can continue, especially as some London boroughs ask for developers to contribute as much as 50% of the housing stock within a build towards affordable housing. We consistently reduce or even totally remove the need for these contributions based on the frameworks laid out in policy documents.

Viability Statements

Local Planning Authorities refer to Viability Statements when discussing S106 decisions with the Council’s affordable housing department. If the statement proves that the recommended contributions make the development non-viable or make it ‘serve no useful purpose’, they can be renegotiated.

These reports require a contextual understanding of the local trends, laws, and policies as well as a strong analytical approach – Adam Roberts Consultancy applies almost two decades of experience and local knowledge to every single statement to ensure that each client has the best possible chance of a positive outcome.

In some instances our clients prefer to arrange a commuted payment, where they pay a cash sum so that the S106 affordable housing can be developed away from the main site.

Relevant S106 Legislation

S106BA Town and Country Planning Act 1990: This allows people to modify the affordable housing requirements on any S106 agreement, irrespective of when it was signed. Decisions to change the requirements are based on economic viability alone, and do not consider other details in the planning agreement.

S106A Town and Planning Act 1990: This stipulates that planning obligations can be renegotiated at any point. If there is no agreement to voluntarily renegotiate and the obligation is over 5 years old, an application can be made to the original planning office stating that the contributions would ‘no longer serve a useful purpose’ or should be modified to be useful.

S73 Town and Country Planning Act: This allows planning obligations to be changed as part of an application to develop land where conditions were previously imposed. These applications create the opportunity to create a new planning agreement.

S62 Town and Country Planning Act: This allows a new planning application to be made for an identical development, but with a different planning obligation. This is the best approach for situations where changes have been made in the planning policy.