Recently, we have been asked to vary a number of s106 agreements for fairly major development sites where development is well under way and residential freeholders and leaseholders now own individual plots on the site. For a deed of variation to be effective under s106A, all parties against whom the obligations are enforceable must sign up to the variation. In reality, neither the developers or local authorities want these individuals to be a party to the agreement, nor would they be likely to sign up, but not including them as parties creates a risk that the deed and the variations in it are unenforceable.
In these circumstances, we have taken the view that the safest way to effect what has been agreed between the parties is to enter into a completely new deed (under s106) which refers to and continues the obligations in the original agreement where appropriate. Others seem surprised by this approach. A risk is of course taken that pre-existing indivdual owners who do not sign up to the new deed will not be bound, but that is generally acceptable to all parties - at least this deed is enforceable against the parties who do sign up.
Variations to major developments of this type must be fairly common and we wonder what views or experience others have in 'getting round' the s106A requirements.
Comments