If you are applying for planning permission, you may be asked to enter into a Section 106 agreement or provide a unilateral undertaking before your planning application can be approved.
For developers and landowners, understanding the difference between these two types of planning obligation is important.
A unilateral undertaking is a legally binding planning obligation made by the landowner or developer without requiring the local planning authority to become a party to the document.
It can be used to secure contributions or other obligations needed to make a development acceptable in planning terms.
However, signing a unilateral undertaking can create significant legal and financial commitments. It should therefore be carefully reviewed before submission.
At Charrette Law, we advise property owners and developers on planning matters, including Section 106 agreements, unilateral undertakings, planning applications, and planning disputes.
What Is a Unilateral Undertaking in Planning?
A unilateral undertaking is a legally binding planning obligation given by a landowner or developer under Section 106 of the Town and Country Planning Act 1990.
Unlike a traditional Section 106 agreement, a unilateral undertaking does not require the local planning authority to sign the document as a party.
The person with the relevant interest in the land makes the undertaking and commits to comply with specified planning obligations.
A unilateral undertaking can therefore be used where a developer is prepared to offer a planning obligation but an agreement between all parties is not considered necessary.
The obligation can include matters such as:
- Financial contributions
- Affordable housing
- Highways contributions
- Open space contributions
- Education contributions
- Infrastructure contributions
- Restrictions on the use of land
- Requirements relating to the development
What Is the Difference Between a Section 106 Agreement and a Unilateral Undertaking?
Both can operate as planning obligations under Section 106, but the way they are created is different.
Section 106 Agreement
A Section 106 agreement is a legal agreement entered into between the relevant parties.
Typically, this can include:
- The developer or landowner
- The local planning authority
- Potentially other relevant authorities
The obligations are negotiated between the parties and then formally documented.
Unilateral Undertaking
A unilateral undertaking is given by the person with an interest in the land.
The local planning authority does not need to sign the undertaking.
This can make a unilateral undertaking particularly useful where the applicant is offering a specific obligation,n and there is no need for extensive negotiation.
In Simple Terms
Section 106 agreement:
The parties negotiate and enter into an agreement.
Unilateral undertaking:
The developer or landowner makes a legally binding planning commitment without requiring the council to enter into the document.
When Is a Unilateral Undertaking Used?
A unilateral undertaking may be appropriate where the planning authority requires a specific planning obligation but does not need to negotiate extensive terms with the applicant.
For example, a local authority might require a financial contribution towards:
- Highways
- Education
- Open space
- Affordable housing
- Community infrastructure
The applicant could provide a unilateral undertaking committing to make the required contribution.
However, whether a unilateral undertaking is appropriate will depend on the circumstances and the requirements of the local planning authority.
Some councils have specific procedures and requirements for unilateral undertakings.
Why Would a Developer Use a Unilateral Undertaking?
There are several potential reasons.
It Can Be More Straightforward
Where the obligation is straightforward and the council does not need to negotiate extensive terms, a unilateral undertaking can sometimes be simpler than a full Section 106 agreement.
It Can Help Progress a Planning Application
If a planning application is otherwise acceptable but requires a specific planning obligation, providing an appropriate undertaking may help resolve the outstanding issue.
It Can Avoid Unnecessary Negotiations
Where the developer is willing to provide a specific contribution, there may be no need for lengthy negotiations over a traditional agreement.
However, this should not be interpreted as meaning that every unilateral undertaking will automatically speed up an application.
The document still needs to satisfy the local authority’s requirements.
What Can a Unilateral Undertaking Include?
The obligations will depend on the development.
A unilateral undertaking could potentially include:
Financial Contributions
The undertaking could commit the developer to paying a specified amount towards an identified infrastructure requirement.
Affordable Housing
In appropriate circumstances, affordable housing obligations can be secured through a planning obligation.
Highway Contributions
A contribution may be required towards highway improvements or transport infrastructure where the development creates a relevant impact.
Open Space
A development may require a contribution towards the provision or improvement of public open space.
Education
Where additional housing creates pressure on local school capacity, an education contribution may be sought where the relevant legal and policy requirements are satisfied.
Restrictions on Development
A unilateral undertaking can also contain restrictions or requirements relating to how land or buildings are used.
The precise wording is important because the undertaking can create legally enforceable obligations.
What Are the Legal Tests for a Planning Obligation?
A unilateral undertaking is not simply a mechanism for a council to demand any contribution it wants.
Planning obligations are subject to legal and policy requirements.
The relevant tests require an obligation to be:
- It is necessary to make the development acceptable in planning terms.
- Directly related to the development.
- Fairly and reasonably related in scale and kind to the development.
These tests are particularly important when assessing the amount and nature of a proposed contribution.
If you are being asked to provide a significant unilateral undertaking, it is worth understanding precisely why the obligation is considered necessary and how the amount has been calculated.
Can You Negotiate a Unilateral Undertaking? Although a unilateral undertaking is made by the developer or landowner rather than being an agreement signed by the council, that does not necessarily mean there is no scope for discussion.
The applicant may need to communicate with the local planning authority about:
- The wording
- The amount of contributions
- Trigger dates
- Payment mechanisms
- The land affected
- The specific obligations
- The council’s administrative requirements
The important distinction is that the final document is an undertaking given by the relevant landowner rather than a negotiated contract between the parties.
Does a Unilateral Undertaking Need to Be Signed?
Yes.
Because the document creates a legally binding obligation, it needs to be properly executed by the relevant party or parties with the necessary legal interest in the land.
The precise execution requirements will depend on the circumstances and the identity of the person giving the undertaking.
This is one reason why legal review is important before submission.
An improperly executed document could cause problems with the planning application.
Who Can Give a Unilateral Undertaking?
The person giving the undertaking must have the appropriate legal interest in the land.
This can be particularly important where a property has:
- Multiple owners
- Leaseholders
- Mortgage interests
- Development agreements
- Options
- Other legal interests
The ownership position should therefore be checked before the undertaking is prepared.
Is a Unilateral Undertaking Legally Binding?
Yes.
A unilateral undertaking is intended to create a legally binding planning obligation.
Once properly completed, the obligations can affect the land and may continue to bind successors in title.
This means that a developer should not sign a unilateral undertaking simply because they want to obtain planning permission without understanding the long-term implications.
The financial and legal commitments should be assessed carefully beforehand.
Can a Unilateral Undertaking Be Enforced?
Potentially, yes.
Because a unilateral undertaking creates a planning obligation, the relevant authority may be able to take enforcement action where the obligation is breached.
The consequences will depend on the nature and wording of the undertaking.
For example, failure to make a required payment could potentially result in the authority taking steps to recover the amount in accordance with the obligation and applicable law.
This makes the drafting of the undertaking particularly important.
Can You Withdraw a Unilateral Undertaking?
A unilateral undertaking should not be treated as something that can simply be withdrawn whenever the applicant changes their mind.
Once it has been properly completed and takes effect, it can create legally binding obligations.
The ability to modify, discharge or otherwise alter a planning obligation will depend on the circumstances and the applicable statutory provisions.
You should therefore obtain advice before signing or submitting a unilateral undertaking if you are uncertain about its consequences.
What Happens If the Planning Application Is Refused?
The effect of a unilateral undertaking following refusal can depend on the wording of the document and the circumstances in which it was given.
Some undertakings contain provisions dealing with when the obligations take effect or circumstances in which they may cease to have effect.
This is another reason why the document should be reviewed carefully before it is signed.
You should understand:
- When the undertaking becomes operative
- What triggers the obligations
- Whether there is a fallback position
- What happens if permission is refused
- What happens if an appeal is submitted
- What happens if the development is never commenced
Can a Unilateral Undertaking Be Used on a Planning Appeal?
Yes, unilateral undertakings can be relevant in planning appeals where a planning obligation is necessary to address an identified reason for refusal.
For example, an appeal may concern a development that is otherwise acceptable but requires a particular contribution or obligation.
The appellant may offer a unilateral undertaking to address the planning concern.
However, the undertaking must still satisfy the relevant legal and policy requirements.
If you are considering using a unilateral undertaking as part of a planning appeal, specialist advice can help ensure that the document properly addresses the issues raised by the local planning authority.
Unilateral Undertaking and Planning Permission
A unilateral undertaking does not itself grant planning permission.
Instead, it can be used to secure obligations that support the acceptability of a development proposal.
For example, the council might determine that a development would be acceptable subject to a contribution towards a particular infrastructure requirement.
The undertaking may provide the legal mechanism for securing that contribution.
The planning permission and the planning obligation are therefore related but separate legal matters.
Is a Unilateral Undertaking the Same as CIL?
No.
Community Infrastructure Levy (CIL) and Section 106 planning obligations are different mechanisms.
CIL is a charge that can be imposed on certain qualifying developments by a charging authority.
A unilateral undertaking is a form of planning obligation.
A development can potentially be subject to both CIL and Section 106 obligations, depending on the circumstances.
When assessing the viability of a development, it is therefore important to consider the combined financial impact of applicable planning charges and obligations.
How Much Does a Unilateral Undertaking Cost?
There is no single standard cost for preparing a unilateral undertaking.
The cost can depend on:
- The size and nature of the development
- The number of obligations
- The value of financial contributions
- The complexity of the drafting
- The number of landowners
- Whether legal negotiations are required
- Whether the matter forms part of a planning appeal
There may also be administrative or monitoring fees charged by the relevant authority.
A developer should consider these costs when assessing the overall viability of a project.
How Long Does a Unilateral Undertaking Take?
A straightforward undertaking may be prepared relatively quickly, but the timeframe can vary.
Potential causes of delay include:
- Complex ownership structures
- Multiple obligations
- Disagreement over the wording
- Disagreement over financial contributions
- Council requirements
- Execution issues
- Title problems
Starting the process early can help prevent a unilateral undertaking from delaying the determination of a planning application or appeal.
Should a Solicitor Review a Unilateral Undertaking?
For a straightforward application, some applicants may be able to use a council’s standard documentation.
However, legal advice can be particularly valuable where the undertaking creates significant financial or development obligations.
A solicitor can review:
- The proposed contributions
- The legal wording
- Trigger mechanisms
- Payment provisions
- Land ownership
- Enforcement provisions
- Expiry provisions
- Conditional clauses
- The relationship with the planning permission
This can help ensure that you understand exactly what you are committing to before signing.
Unilateral Undertaking Planning: What Should You Do Before Signing?
Before signing a unilateral undertaking, you should consider:
- What obligation am I agreeing to?
- Why is the obligation necessary?
- How has any financial contribution been calculated?
- When does payment become due?
- What triggers the obligation?
- Does the obligation comply with the relevant legal tests?
- Who owns the land?
- Will the obligation bind successors in title?
- What happens if planning permission is refused?
- What happens if the development is never built?
- Can the obligation be modified or discharged?
- Are there other planning obligations or CIL liabilities?
These questions can help you understand the wider financial and legal implications of the undertaking.
Need Help With a Unilateral Undertaking?
A unilateral undertaking can be an important part of the planning process, particularly where a development requires a planning obligation before permission can be granted.
However, because the undertaking can create legally binding obligations, it is important to understand the document before signing it.
Whether you are a property developer, landowner, investor, or planning applicant, Charrette Law can assist with planning-related legal matters, including unilateral undertakings, Section 106 agreements, planning applications, and planning appeals.
If you have been asked to provide a unilateral undertaking or have received a draft that you need reviewed, contact Charrette Law before signing.
Frequently Asked Questions About Unilateral Undertakings
What is a unilateral undertaking in planning?
A unilateral undertaking is a legally binding planning obligation given by a landowner or developer under Section 106 of the Town and Country Planning Act 1990. Unlike a Section 106 agreement, it does not require the local planning authority to become a party to the document.
Is a unilateral undertaking the same as a Section 106 agreement?
They are both forms of planning obligation under Section 106, but they operate differently. A Section 106 agreement is entered into between the relevant parties, while a unilateral undertaking is given by the landowner or developer.
Is a unilateral undertaking legally binding?
Yes. Once properly executed and effective, a unilateral undertaking can create legally binding obligations relating to the land.
Can a council reject a unilateral undertaking?
A local planning authority may consider whether the proposed undertaking adequately addresses the planning issues that need to be resolved. If it does not meet the council’s requirements, the planning application or appeal may remain unresolved.
Can a unilateral undertaking secure affordable housing?
Potentially, yes. Affordable housing can be secured through planning obligations where the relevant planning and legal requirements are satisfied.
Can I use a unilateral undertaking instead of a Section 106 agreement?
It depends on the circumstances and the requirements of the local planning authority. A unilateral undertaking may be suitable where the required obligation is straightforward, but it is not automatically an alternative in every case.
Can a unilateral undertaking be used during a planning appeal?
Yes. An appellant can potentially offer a unilateral undertaking to address a planning obligation identified as necessary to make a development acceptable.
Can a unilateral undertaking be changed?
Planning obligations may be capable of modification or discharge in certain circumstances, but this depends on the relevant legislation, the wording of the obligation and the circumstances of the case.
Does a unilateral undertaking run with the land?
A properly constituted planning obligation can bind the land and potentially affect successors in title. This is why the ownership and drafting should be carefully reviewed.
Do I need a solicitor for a unilateral undertaking?
Professional legal advice is particularly useful where the undertaking involves substantial financial contributions, complex obligations, multiple landowners,s or a planning appeal.
Have You Been Asked to Provide a Unilateral Undertaking?
Before signing a planning obligation, make sure you understand exactly what you are agreeing to and the financial and legal obligations it may create.
Charrette Law can review and advise on unilateral undertakings, Section 106 obligations, and other planning matters. Contact our team today to discuss your requirements.
