S106 and planning obligations

A section 106 (S106) agreement is a contract of obligations entered into between a developer, landowner and a Local Planning Authority (LPA). It can be attached to a planning permission to make acceptable development that would otherwise be unacceptable in planning terms.

These obligations may be negotiated between the developer and the LPA, or the developer may choose to accept restrictions without negotiation in what is called a Unilateral Undertaking.

S106 agreements are used for three purposes. To:

• Prescribe the nature of development. For example, requiring that a given portion of housing is affordable.
• Compensate for loss or damage created by a development. For example, loss of open space.
• Mitigate a development’s impact. For example, through increased public transport provision. 

As a general rule, we ask for S106 contributions from:

• major developments (schemes of 10 dwellings or more), or
• schemes inside a Special Protection Area (SPA). 

We also require affordable housing in certain rural areas for developments that provide an increase of six dwellings or more.

Yes. The Community Infrastructure Levy (CIL) Regulations 122 set out that the use of planning obligations should only be sought where they meet all of the following tests:

• they are necessary to make a development acceptable in planning terms
• they are directly related to a development
• they are fairly and reasonably related in scale and kind to the development.

We use the anticipated occupancy of the development to calculate the contributions.

The anticipated occupancy is calculated using the housing mix (number of two bed, three bed houses etc..)

This ensures that the amount of money sought is always reasonable in relation to the size of development proposed.

There are different rates applied to different types of contribution. For example, it will cost more to provide a school place for a child than it will to provide a recycling bin so the rate per occupant will be more for education that it will for waste and recycling.

Please note that we do not include affordable housing units in the calculation.

The money secured through a S106 agreement can only be used for the purpose it is sought for. Eg if £2,000 is sought for rubbish and recycling, and £10,000 is sought for environmental improvements, but it transpires that rubbish and recycling need £3,000, you cannot reallocate some of the environmental improvements contribution to make up the difference.

Our developer contributions database shows the contributions allocated through S106 agreements. You can search the database for financial and non financial contributions.

Developer contributions database

Please read our developer contributions database guide.

Yes. A section 106 agreement can be changed but the process can only be started by the developer. The developer must submit a formal application under S106A of the Town and Country Planning Act 1990 to the Local Planning Authority to request a variation.

Once the variation has been agreed, a new legal document called a Deed of Variation is produced. This runs in conjunction with the original S106 agreement but overwrites certain clauses.

There is no limit to the number of Deeds of Variation that can be made to alter a S106 agreement. 

The responsibility to fulfil planning obligations lies with the party that has agreed the Section 106 agreement, or the successor in title that implements the planning permission.

If we become aware that a breach has occurred, we will attempt to recover any unpaid planning obligations with additional late-interest in accordance with the Section 106 agreement. Should payments not be forthcoming, the debt recovery process will be followed and if passed to debt recovery will attract a minimum 30% additional fee.

The IFS will be published annually, and provides a summary of all financial and non-financial developer contributions relating to S106s and CIL within Waverley.

• 2021/22 Infrastructure Funding Statement
• 2020/21 Infrastructure Funding Statement
• 2019/20 Infrastructure Funding Statement

Obtaining S106 agreements

If the agreement in question is dated between 01/01/2008 – present, a redacted copy can be found on our online database.

You will find it easiest to search Applications by the application number of the associated planning permission. Select the application number, look at covenants, select a covenant, and you will have a button to view the deed appear at the bottom.

For all other agreements, or to obtain hard copies, please contact landcharges@waverley.gov.uk who will be able to provide a copy for a nominal fee.

Conveyancing/discharge of obligations

Please note that Waverley Borough Council does not offer a conveyance search service. For proofs of compliance please refer to our online database.

If the information is not available on the database, there are alternate steps you can take depending on your circumstances:

If you are purchasing the property

Contact the seller, because if they were party to the deed or had a conveyance search undertaken when purchasing themselves, they should be in receipt of all necessary proofs.

If you are selling your property

If not party to the agreement, contact the person(s) from which you purchased the property as they should be in receipt of all necessary proofs.