Planning permission can sometimes involve more than submitting application forms, architectural drawings and supporting documents. Where a proposed development creates impacts that need to be addressed, a planning obligation may be required before planning permission can be granted.
One way of securing a planning obligation is through a unilateral undertaking.
A unilateral undertaking is a legally binding planning obligation made by a person with an interest in land without the Local Planning Authority becoming a party to the document. It is made under Section 106 of the Town and Country Planning Act 1990 and can be used to secure obligations connected with a proposed development.
For property owners and developers, unilateral undertakings can be particularly relevant where planning permission has been refused, where a planning appeal is being pursued, or where a specific planning obligation needs to be offered to address an issue arising from a proposed development.
However, a unilateral undertaking is a formal legal document, usually executed as a deed, and can create obligations that are legally binding and capable of affecting successors in title. It is therefore important to understand exactly what is being offered before the undertaking is completed.
At Charrette Law, we advise property owners, landowners and developers on planning and property matters, including planning obligations, Section 106 issues, planning applications and planning appeals.
What Is a Unilateral Undertaking?
A unilateral undertaking is a type of planning obligation.
It is generally made by a person with an interest in the land, such as a landowner or developer, who voluntarily agrees to certain obligations connected with a proposed development.
The key difference between a unilateral undertaking and a traditional Section 106 Agreement is that the Local Planning Authority does not execute the unilateral undertaking as a party to the deed.
How Does a Unilateral Undertaking Work?
A unilateral undertaking can be used to make commitments relating to land or a proposed development.
Under Section 106, planning obligations can include provisions to:
- Restrict the development or use of land
- Require specified operations or activities to be carried out
- Require land to be used in a particular way
- Require financial contributions to be made to the relevant authority
The undertaking will normally set out the specific obligation, when it takes effect and the circumstances in which it becomes enforceable.
For example, a developer may agree to make a financial contribution if planning permission is granted and the development is implemented.
Why Is It Called a Unilateral Undertaking?
The word unilateral simply means that the obligation is given by one side.
The person with an interest in the land gives legally binding commitments, but the Local Planning Authority does not sign the document as a party.
This distinguishes it from a bilateral Section 106 Agreement, which is normally entered into between the person with an interest in the land and the Local Planning Authority.
Unilateral Undertaking vs Section 106 Agreement
Although both documents are planning obligations, they are not the same.
What Is a Section 106 Agreement?
A Section 106 Agreement is a planning obligation entered into under Section 106 of the Town and Country Planning Act 1990.
It is commonly used to secure obligations that are necessary to make a development acceptable in planning terms.
A Section 106 Agreement may deal with matters such as:
- Affordable housing
- Financial contributions
- Highway works
- Open space
- Community infrastructure
- Restrictions on the use of land
- Phasing of development
The Local Planning Authority is generally a party to the agreement.
The Main Difference
The main difference is who enters into the document.
With a Section 106 Agreement, the Local Planning Authority and the relevant parties with an interest in the land are generally parties to the agreement.
With a unilateral undertaking, the person or persons giving the obligations execute the deed without the Local Planning Authority becoming a party to it.
A unilateral undertaking cannot impose obligations on the Local Planning Authority because the authority has not entered into the undertaking.
When Might a Unilateral Undertaking Be More Suitable?
A unilateral undertaking may be particularly useful where a developer or landowner wants to make a specific commitment without the need to negotiate and execute a bilateral agreement.
It can also be particularly relevant during a planning appeal.
However, the correct approach will depend on the nature of the planning obligation and the specific circumstances of the development.
When Is a Unilateral Undertaking Used?
A unilateral undertaking can be used in a range of planning situations.
During a Planning Application
In some cases, a planning application may require an obligation to address a particular planning issue.
For example, an applicant may offer to:
- Make a financial contribution
- Restrict the future use of part of a property
- Prevent separate occupation of a building
- Carry out specified works
- Provide mitigation connected with the development
The obligation must still meet the legal and planning tests that apply to planning obligations.
Planning obligations should only be used where they are necessary to make the development acceptable in planning terms, directly related to the development, and fairly and reasonably related in scale and kind to the development.
During a Planning Appeal
Unilateral undertakings are frequently associated with planning appeals.
A planning application may have been refused because the Local Planning Authority considered that a planning obligation was required.
During the appeal process, the appellant may submit a unilateral undertaking to address the relevant planning issue.
For example, the undertaking may offer a financial contribution or restrict the future use of the development.
Government guidance specifically addresses the use of planning obligations, including unilateral undertakings, in planning appeals.
To Secure a Specific Planning Obligation
A unilateral undertaking may also be appropriate where the obligation is relatively straightforward and does not require reciprocal commitments from the Local Planning Authority.
The wording and legal effect of the undertaking must still be considered carefully.
What Can Be Included in a Unilateral Undertaking?
The content of a unilateral undertaking will depend on the development and the planning issue it is intended to address.
Financial Contributions
A common use of planning obligations is to secure financial contributions.
The undertaking should clearly explain:
- The amount payable
- Who must make the payment
- When payment becomes due
- The purpose of the contribution
- Any relevant trigger for payment
Government guidance confirms that unilateral undertakings can set out conditions relating to financial contributions, including their purpose and the timing or phasing of payments.
Restrictions on the Use of Land
An undertaking can also restrict how land or a building may be used.
For example, an obligation may prevent a building from being occupied independently or limit the use of land to a specified purpose.
This type of obligation can be relevant where a restriction is necessary to make the development acceptable in planning terms.
Requirements to Carry Out Works
A planning obligation may require specified operations or activities to be carried out in, on, under or over land.
The obligation should clearly identify:
- What work is required
- Which part of the land is affected
- When the work must be completed
- Any trigger for the obligation
Clear drafting is essential because the obligation must be capable of being understood and enforced.
Who Needs to Sign a Unilateral Undertaking?
Identifying the correct parties is an important part of preparing a unilateral undertaking.
Government guidance states that it is the responsibility of the applicant or appellant to establish the relevant legal interests in the land.
Those interests may include freeholders, leaseholders, holders of relevant interests and mortgagees, depending on the circumstances.
Landowners
The person giving the undertaking must have an interest in the land that they are capable of binding.
Where more than one person owns the relevant land, it may be necessary for each relevant landowner to be involved.
Some Local Planning Authorities also require mortgagees to execute the undertaking where there is a mortgage affecting the property.
Why Ownership Checks Matter
A planning obligation cannot simply bind interests that the person signing the document does not own or control.
If the ownership information is incomplete or incorrect, this can create problems during the planning application or appeal process.
This is particularly important for:
- Development sites with multiple owners
- Leasehold properties
- Land subject to mortgages
- Larger development sites
- Sites involving complex title arrangements
Does a Unilateral Undertaking Run With the Land?
Planning obligations are legally binding and generally run with the land.
This means that the obligations can continue to affect successors in title rather than applying only to the original person who entered into the undertaking.
This is one reason why a unilateral undertaking should not be signed without carefully considering its long-term implications.
Impact on Future Owners
A future purchaser may need to comply with obligations affecting the land.
Depending on the terms of the undertaking, this could involve:
- Restrictions on use
- Financial obligations
- Requirements to carry out works
- Ongoing development obligations
Planning obligations may also be registered as local land charges.
For property owners and developers, this can be relevant when buying, selling or refinancing land.
What Legal Requirements Must a Unilateral Undertaking Meet?
A unilateral undertaking is not simply an informal letter promising to do something.
It is a formal planning obligation and must be prepared correctly.
The Undertaking Must Be Executed as a Deed
Planning obligations under Section 106 are formal legal instruments executed as deeds.
The document should identify:
- The land affected
- The person entering into the obligation
- The relevant interest in the land
- The Local Planning Authority with the power to enforce the obligation
- The statutory basis of the planning obligation
- The obligations being given
- The relevant triggers and conditions
The Obligations Must Be Clear
The undertaking should clearly state what the person signing it is required to do.
Unclear or poorly drafted obligations can create uncertainty and difficulties with enforcement.
The requirements imposed by the obligation and when they take effect should therefore be clearly set out.
Can a Unilateral Undertaking Be Changed or Withdrawn?
This is an important issue to consider before signing.
Once a unilateral undertaking has been properly executed, it may not simply be withdrawn or amended by the person who made it.
Careful preparation is important because it will not usually be possible to subsequently withdraw or modify an executed unilateral undertaking unilaterally.
Modifying or Discharging a Planning Obligation
Planning obligations can, in appropriate circumstances, be modified or discharged under Section 106A of the Town and Country Planning Act 1990.
This may be achieved by agreement with the Local Planning Authority or, in some cases, through a formal application process.
The timing and availability of these options depend on the circumstances and the date on which the obligation was entered into.
Professional advice can help determine whether an existing obligation may be capable of modification or discharge.
Common Mistakes to Avoid
A unilateral undertaking can appear relatively straightforward, but mistakes can have significant consequences.
Signing Before Understanding the Obligation
A developer may be focused on obtaining planning permission or progressing an appeal.
However, agreeing to an obligation without understanding its financial or legal consequences can create problems later.
Failing to Identify All Legal Interests
Missing a relevant landowner, leaseholder or mortgagee can delay the process and potentially affect the validity or effectiveness of the obligation.
Using Unclear Wording
The obligations, payment triggers and affected land should be clearly identified.
Ambiguity can create disputes about what was intended.
Offering an Obligation That Does Not Meet the Planning Tests
A planning obligation must be relevant to the development.
It should not simply be used to secure benefits that are unrelated or disproportionate to the proposal.
Leaving the Undertaking Until the Last Minute
This can be particularly problematic during a planning appeal, where the document may need to be reviewed and submitted within the relevant process and timescales.
Early legal advice can help prevent avoidable delays.
Unilateral Undertakings and Planning Appeals
A unilateral undertaking can play an important role where a planning appeal involves outstanding planning obligations.
Addressing Reasons for Refusal
If an application has been refused partly because a required obligation was not secured, an undertaking may help address that issue.
However, the undertaking alone may not resolve every reason for refusal.
The planning merits of the development will still be assessed.
Timing Is Important
Planning appeals operate within procedural timescales.
Leaving the preparation of a unilateral undertaking until the final stages of an appeal may create unnecessary difficulties.
Ownership documents, title information and drafting requirements may all need to be addressed before the undertaking can be finalised.
How Charrette Law Can Help With Unilateral Undertakings
Planning obligations can involve legal, financial and planning considerations.
A unilateral undertaking must be drafted carefully to ensure that it accurately reflects the obligation being offered and the land and interests that are intended to be bound.
At Charrette Law, we can advise property owners, developers and landowners on planning and property matters affecting development projects.
Our Advice Can Include
We can assist with:
- Unilateral undertakings
- Section 106 Agreements
- Planning obligations
- Planning applications
- Planning appeals
- Development restrictions
- Changes of use
- Planning conditions
- Land ownership issues
- Property and development documentation
Get Expert Advice on a Unilateral Undertaking
A unilateral undertaking can be an important tool for addressing planning obligations and supporting a planning application or appeal.
However, it is also a legally binding document that can create obligations affecting the land and potentially future owners.
Before signing an undertaking, it is important to understand what you are agreeing to, whether the obligation is necessary and proportionate, and whether the document has been prepared correctly.
If you are dealing with a planning obligation, preparing a unilateral undertaking or pursuing a planning appeal, contact Charrette Law for expert legal and planning advice. Our team can help you understand your obligations and take the appropriate next steps for your development.
Conclusion
A unilateral undertaking is an important planning tool that can be used to secure obligations connected with a proposed development.
It differs from a traditional Section 106 Agreement because the Local Planning Authority does not become a party to the document. However, this does not make the undertaking any less significant. Once properly executed, it can create legally binding obligations affecting the land and, in some circumstances, future owners.
Unilateral undertakings can be particularly relevant during planning applications and planning appeals where a specific obligation is needed to address an outstanding planning issue.
Because of their potential legal and financial consequences, it is important to ensure that the correct parties are identified, the obligations are clearly drafted and the undertaking is appropriate for the proposed development.
Charrette Law Firm and Expert Planning Services in UK can advise property owners, landowners and developers on unilateral undertakings, Section 106 obligations, planning applications, planning appeals and related planning matters.
Frequently Asked Questions About Unilateral Undertakings
What Is a Unilateral Undertaking in Planning?
A unilateral undertaking is a legally binding planning obligation made under Section 106 of the Town and Country Planning Act 1990 by a person with an interest in land, without the Local Planning Authority becoming a party to the document.
Is a Unilateral Undertaking the Same as a Section 106 Agreement?
No. Both are forms of planning obligation, but a Section 106 Agreement normally involves the Local Planning Authority as a party, while a unilateral undertaking is given by the person or persons making the obligations without the authority becoming a party to it.
Can a Unilateral Undertaking Be Used During a Planning Appeal?
Yes. Unilateral undertakings can be used in connection with planning appeals to secure planning obligations relevant to the proposed development.
Does a Unilateral Undertaking Bind Future Owners?
Planning obligations generally run with the land and can bind successors in title, depending on the nature of the interest and obligation.
Can a Unilateral Undertaking Require the Council to Do Something?
No. A unilateral undertaking cannot bind the Local Planning Authority because the authority is not a party to the undertaking.
Can I Change a Unilateral Undertaking After Signing It?
It is not normally possible to withdraw or modify an executed unilateral undertaking unilaterally. In appropriate circumstances, planning obligations may be modified or discharged through the statutory procedures available under Section 106A.
Who Needs to Sign a Unilateral Undertaking?
This depends on the legal interests in the land. Relevant owners and other parties with interests in the land may need to be identified and involved. Mortgagees may also need to sign in some circumstances.
When Should I Seek Legal Advice?
Legal advice should be sought before signing or submitting a unilateral undertaking, particularly where the obligation involves financial contributions, restrictions on land use or obligations that may affect future owners.
Can Charrette Law Help With a Unilateral Undertaking?
Yes. Charrette Law can advise property owners, landowners and developers on unilateral undertakings, Section 106 obligations, planning applications and planning appeals.
