Using Section 106 Agreements and Unilateral Undertakings to secure Planning Obligations

Planning obligations sometimes need to be modified and/or requests made to confirm the obligation has been met (it can be discharged) are received. Typically, proposals to vary S106 agreements will form part of a S73 application to make material amendments to an existing planning permission. In such cases the council will not require a separate fee to cover planning officer costs to handle the variation of the original S106 agreement. However, occasionally an applicant may consider it necessary to seek to vary a S106 agreement outside of a S73 application and/ or request to confirm  discharge is received which results in planning administration charges. Therefore, to cover council costs, a fee of £200 has been introduced.

The fees are reflective of the planning officer costs associated with responding to the request but are not inclusive of the council's legal costs, which will still be separately calculated by our solicitors as currently happens.  The fee does also not cover any third-party specialist advice that the council may reasonably need to procure to independently assess proposed variations (such as viability advice). Where third party specialist advice is required, it will continue to be the expectation that the applicant will meet the costs incurred by the council.

A Section 106 planning obligation may be changed or discharged in two ways.

1) Within five years of the date of the completion of the obligation, at any time, by agreement between us (the LPA) and the person or persons against whom the obligation is enforceable. The primary legislation for this option is The Town and Country Planning Act 1990.

2) After five years beginning with the date the obligation was legally completed (or a later date specified in the obligation itself). Once accepted as a valid application there is a time limit for the application to be decided of 8 weeks. The primary legislation for this option is The Town and Country Planning (Modification and Discharge of Planning Obligations) Regulations 1992.

In both instances, we require applicants to fill out the relevant application form (available to download below) and submit to development.control@dudley.gov.uk

As an alternative to an electronic submission a paper submission can be made as for planning applications.

From the 1st April 2025 all enquiries for the confirmation of terms and/or compliance with S106 agreements, Unilateral Undertakings or CIL requirements (including confirmation that there is no liability on potential purchasers/ or no financial obligations) will incur a flat rate fee.

For the latest fees please see the Planning Fees and Charges.

We require applicants to fill out the relevant application form (available to download below) and submit to development.control@dudley.gov.uk

From April 2015 the use of S106 Agreements by Dudley Council will be limited to securing Affordable Housing and any specific on-site requirements which will be determined on a site by site basis.

The Government has introduced a new charge called the Community Infrastructure Levy (CIL) to replace Planning Obligations / S106 Agreements in part. CIL was adopted by Dudley Borough in 2015.

From the date CIL was adopted by Dudley Council it will apply to certain residential and retail planning permissions which first permit development (i.e. where the date of the decision notice is on or after the date of adoption of the Dudley CIL)

If your proposed development is likely to be CIL Liable you are required to submit a completed Community Infrastructure Levy Additional Information Form which is available on the Planning Portal. This is so that we can calculate the amount of CIL accurately.

• Planning Portal: Community Infrastructure Levy

• Community Infrastructure Levy

As part of the planning process, a developer may be required to enter into a legal agreement to provide infrastructure and services on or off the development site where this is not possible to achieve through planning conditions. These agreements are known as Planning Obligations and are a delivery mechanism for the matters that are necessary to make the development acceptable in planning terms.

Such agreements can cover almost any relevant issue, acting as a main instrument for placing restrictions on developers, often requiring them to minimise the impact on the local community and to carry out tasks which will provide community benefits, and can include the payment of sums of money.

They are commonly used to bring developments in line with the objectives of sustainable development. Examples of types of infrastructure or services that planning obligations can include are:

• Highway Improvements

• Provision of Affordable Housing

• Improved community facilities – e.g. Public open space/ play areas, educational facilities 

• Specific measures to mitigate impact on a local area – e.g. parking restrictions, landscaping or noise insulation.

• Restrictions and obligations on the use of land.

This list is not exhaustive. Each planning application is dealt with individually on its merits and restrictions and requirements not on this list may also be needed.

Planning Obligations can be secured through either a Section 106 Agreement or a Unilateral Undertaking depending on the nature of the development.

A Unilateral Undertaking is a simplified version of a planning agreement, which is relatively quick and straightforward to complete, and is entered into by the landowner and any other party with a legal interest in the development site. They can assist in ensuring that planning permissions are granted speedily, which benefits both applicants and the Council.

A Unilateral Undertaking will consist solely of the payment of financial contributions, of one or more of the types described in the template, to be paid prior to commencement of development.

The Undertaking includes on obligation to pay the Council’s costs in monitoring and managing the implementation of the planning obligation.

The Council is committed to offering pre-application advice. Where a Unilateral Undertaking is required, you are advised to include this element in your pre-application discussions, so that the details and level of contribution can be agreed prior to the submission of a planning application. Once this information has been obtained the applicant is required to complete, sign and submit the valid Unilateral Undertaking at the same time as the planning application is submitted. As part of the Unilateral the applicant is required to provide proof of title to the land.

Upon receipt of the submitted Unilateral the Council will assess and determine whether it is valid. If it invalid then the applicant will be notified and required to submit an amended Undertaking.

Copies of the template Unilateral Undertakings can be downloaded below, there are two types of Unilateral Undertakings that can be used:

• Unilateral Undertaking for Full Planning Application

• Unilateral Undertaking for Outline Planning Application

Also available to download are Explanatory Notes which provide more detailed guidance for completing a Unilateral Undertaking.

Where a planning obligation will not be covered by a Unilateral Undertaking, applicants will still be required to enter into a S106 Agreement. This type of legal agreement will need to be entered into by the applicant, the Council and anyone else who has in interest in the land forming the application site.

A S106 Agreement is normally a more complex type of planning agreement than a Unilateral Undertaking and normally takes longer and is more expensive to complete.

For both developers and the Council it is beneficial for S106 planning obligations to be covered in pre-application discussions where these take place. It provides an early opportunity to clarify the Council’s planning obligations policies in relation to the proposed development and for the applicant to raise any questions.

Investing time and resources at the pre-application stage can save time and resources and help speed up the delivery of planning obligations.