Planning essentials case update: S106 agreements at appeal – to sign or not to sign

A recent High Court decision highlights the importance of getting your section 106 agreement signed and submitted in good time when at appeal.

The procedural guide for planning appeals details that “Planning obligations received after the… deadlines will be taken into account only at the Inspector’s discretion”. [1]The guide states that:

• If you’re submitting an appeal by written representations, you should submit an executed and certified copy of your planning obligation when making the appeal; and
• If you’re facing a hearing or an inquiry, a final draft planning obligation agreed by all parties should be received by the Planning Inspectorate no later than 10 working days before the hearing / inquiry opens. 

The guide points to the Government’s good practice advice for planning obligations which states that, normally, all persons with an interest in land affected by the obligations (including all freeholders, leaseholders and mortgagees) must sign the planning obligation.[2]

In Tiwana Construction Limited v Secretary of State for Housing, Communities and Local Government [2025] EWHC 1485 (Admin) an outline planning application for a self-build development was under consideration. [3] The local planning authority refused the application due to a lack of affordable housing (amongst other reasons). The developer appealed and the Inspector provided the developer with a period of time (and then a further extension of time) to submit a completed section 106 agreement in order to secure affordable housing. The developer’s mortgagee could not sign within the Inspector’s deadline and so the developer instead submitted a unilateral undertaking to the Inspector. The Inspector, on receiving a unilateral rather than a bilateral agreement, decided not to consider the planning obligation and refused permission. The Court decided that this was an irrational decision and the Inspector’s decision was quashed. 

It's worth noting that the Court acknowledged that Inspectors have a wide discretion, deadlines are important, and procedural rigour is required in the appeal process. However, fortunately for the developer, the context here was all important.  The Court made it clear that it did not matter whether the affordable housing offer was part of a bilateral or unilateral agreement, and the fact that a mechanism to secure affordable housing had been provided should have been taken into account by the Inspector.

Despite the ruling, the case is a helpful reminder to all applicants facing an appeal that they should tee up all relevant parties (such as leaseholders and mortgagees) to sign planning obligations in good time, heeding Inspector deadlines.