UK: Back To Basics: The Impact Of Old Planning Agreements

Last Updated: 26 September 2019
Article by Lisa Bazalo and Catherine Howard

When purchasing land, it is always advisable to check what obligations could come with ownership. Such obligations include planning obligations, which are now made pursuant to section 106 of the Town and Country Planning Act 1990 (the 1990 Act) but used to be made under the Town and Country Planning Act 1971 (section 52 agreements). What happens where a new planning permission is granted over land that is bound by old planning agreements? Does the grant of a new planning permission supersede restrictions imposed on a site under a historical section 52 agreement? Is an old section 52 agreement still relevant? If so, can it be discharged or modified? If you uncover a historical section 52 agreement relating to land, these are the sorts of questions you may need to ask. So what exactly is the effect of these old agreements and what can be done about them?

Section 52 of the 1971 Act was superseded by the coming into force of section 106 of the 1990 Act, which was later amended by the Planning and Compensation Act 1991 (the 1991 Act). Most section 52 agreements will have been entered into either unilaterally or with the local planning authority. Like section 106 agreements, they “run with the land” and bind anyone acquiring an interest in the land subject to any overriding clause in the agreement or until they have been formally discharged. Unlike obligations under section 106 which, since 25 October 1991 (the date on which the 1991 Act amendments came into effect) can be formally discharged pursuant to section 106A of the 1990 Act, there is no statutory mechanism for the discharge of section 52 obligations under the 1971 Act, or for section 106 obligations entered into before that date.

So, how can an old planning agreement be discharged?

Discharging an old planning agreement

A section 52 agreement entered into before 25 October 1991, or a section 106 agreement entered into before that date, can only be discharged or modified in one of three ways:

  1. by an application pursuant to section 84 of the Law of Property Act 1925 (the LPA 1925); or
  2. by agreement between the parties; or
  3. by legislation.

Option 1: by application pursuant to section 84 of the LPA 1925

The first option requires an application to the Upper Tribunal (Lands Chamber) for a discharge or modification of a restrictive covenant under section 84 of the Law of Property Act 1925. The Upper Tribunal may discharge or modify a restrictive covenant if satisfied that one of the following grounds applies:

  • the covenant is obsolete (section 84(1)(a) LPA 1925);
  • the covenant impedes some reasonable use of the land (section 84(1)(aa) LPA 1925);
  • the beneficiaries expressly or impliedly agree (section 84(1)(b) LPA 1925); and
  • no injury will be caused (section 84(1)(c) LPA 1925).

Option 2: by agreement between the parties

The second option is that the parties could agree to the discharge of the agreement on a consensual basis. It is a principle of common law that an agreement/deed can be discharged or varied by parties. This is clearly the simplest method to modify or discharge a planning agreement and the negotiations are typically embodied in a deed of variation.

Option 3: by legislation

The third option is using legislative powers to override the agreement. One such power lies in section 120(4) of the Planning Act 2008 which provides that a Development Consent Order (DCO) may make provision for any of the matters listed in Part 1 of Schedule 5, including “the abrogation or modification of agreements relating to land”. Although we aren't aware of any instances where this power has been used in any DCOs to date, we envisage that it will be increasingly relied on to modify or abolish restrictions contained in planning agreements.

In many instances, the obligations contained within section 52 agreements will be historical and there is a good chance they will have been discharged around the time permission was granted. However, obligations can be ongoing and therefore it is important to read the agreement carefully to check if there are any restrictions, particularly in relation to the use of land. Although the risk of enforcement for historical obligations may be low, strictly speaking the section 52 agreement will run with the land and may continue to appear on the land charges register until it is formally discharged using one of the three routes discussed above.

Practical steps

Ask the seller for evidence confirming that all relevant planning obligations have been discharged. If no evidence is available, or if there are ongoing restrictive obligations that conflict with redevelopment proposals, then consider making the transaction conditional on a deed of variation being entered into. If the local planning authority has granted a subsequent planning permission which is inconsistent with a restriction contained in a section 52 agreement, this will generally be a good indication of the authority’s willingness to enter into a deed of variation or discharge agreement. On the contrary, if the local planning authority is not willing to enter into a variation, then this is likely to be an indication that they feel the restrictions contained in the agreement still serve a valid planning purpose. In such a situation, a buyer will need to reconsider any development proposals that conflict with restrictive obligations (eg in relation to use) in the extant planning agreement, or factor the obligations into the price of the land.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions