How to fix drafting before it fails: five LPA essentials

Poor drafting is the difference between lost contributions and enforceable obligations. Too many planning obligations fail not because of policy or decision making, but because of avoidable drafting errors. Inactive triggers, incorrect plans and weak financial clauses continue to cost councils money. This article identifies five critical drafting fixes that can prevent failure and strengthen agreements.

Having worked closely with numerous local authorities for over twenty years, I’ve developed a clear sense of where drafting tends to break down in agreements. The good news is that most of these issues are entirely fixable with small, targeted improvements. With the right modifications, templates can be strengthened, become fully functional and enforceable, without adding unnecessary complexity.

You may also be interested in my web series Small Tweaks, Big Improvements, which explores the most common drafting pitfalls and how to avoid them.

Triggers that never activate

Contributions exist to mitigate the impacts of development. Ensuring they are triggered, collected and protected is fundamental to delivering the infrastructure that supports that development.

When the trigger fails, the payment fails, leaving the council without the contribution it expected and placing the project at risk.

On large or phased sites, developers often never reach the final unit. Any trigger tied to “occupation of the later units” simply never activates. When that happens, the payment clause becomes redundant, and the agreement that was negotiated over months of back‑and‑forth suddenly becomes unenforceable. This is one of the most common, and most avoidable drafting failures.

The solution is simple: use percentage‑based triggers instead of fixed numbers.

For example, instead of drafting “payment prior to occupation of the 80th dwelling on an 85-unit scheme,” draft “payment prior to occupation of 75% of dwellings.” Percentages will not fail you. They are predictable, enforceable, and remove the risk of non‑payment caused by incomplete build‑out and abandoned schemes.

This gives the LPA a far stronger enforcement position and ensures the trigger can never become obsolete. With percentage‑based drafting, you never need to lose out on a contribution again.

Plan errors undermine enforceability

Missing plans, incorrect plans or outdated versions create delay and significantly weaken the council’s position on enforceability. This issue is often overlooked, but it is absolutely critical: every plan must be accurate, clearly labelled and attached to the agreement in its final form.

If the wrong plan is incorporated or if a plan is missing altogether, the agreement becomes unenforceable. A simple drafting error can cost the council millions.

A common example illustrates the risk. Landscaping obligations are often shown on a small parcel of land that is not within the developer’s control or ownership. Because the parcel is minor, it can be overlooked during drafting. The plans may show hedges or screening intended to reduce the visual impact of the built form but if that parcel was never tied into the S106 agreement, the obligation is unenforceable. A developer cannot be compelled to undertake works on land it does not own, leaving the council without the mitigation it relied upon.

Accurate, up‑to‑date plans are essential for a robust agreement. They must correspond precisely with land ownership, be approved by officers, and clearly define the site boundary. Plans should never be treated as an afterthought: they are a core component of enforceability and a critical safeguard for the council.

Weak financial clauses cost councils money

Missing indexation and vague interest provisions allow developers to delay or underpay contributions. When indexation is not applied correctly, the value of the contribution erodes, and the infrastructure it was intended to fund may no longer be delivered as planned. Simple drafting errors; such as failing to link contributions to the correct index or omitting indexation entirely can leave the LPA out of pocket.

A common example shows how easily this happens. An agreement may include a definition for indexation; for instance, “Indexation means the BCIS All‑in Tender Price Index” yet fail to apply it to the contribution payment clause. The definition sits unused. In this scenario, the indexation definition is meaningless. The contribution is frozen at its original value, and the council loses money.

When contributions lose value, infrastructure projects become underfunded, deficient, or, in some cases, unachievable. These risks are entirely avoidable with precise financial drafting.

Strong financial clauses preserve the long‑term value of contributions and ensure that infrastructure can be delivered as planned. Every contribution must be clearly linked to the correct index and interest provisions added to deter delay and safeguard the council’s financial position.

Successor liability: the hidden enforcement risk

If obligations do not bind successors in title, enforcement becomes impossible the moment the land changes hands. Release clauses are essential, but they must be drafted correctly. It is appropriate to release future homeowners from wider S106 obligations, yet it is not appropriate to release successors in title when the development land itself is sold. In those circumstances, the obligations must continue to run with the land and bind the new developer; as intended by S106 of the Town and Country Planning Act 1990, otherwise, the agreement becomes unenforceable.

In practice, this issue arises frequently. Developers go into liquidation, sites are sold mid‑build, or parcels are transferred to new owners. When release clauses are drafted weakly, the incoming owner may not be legally bound to pay contributions or deliver obligations; leaving the council without the mitigation it relied upon, and without the money it is rightly owed.

A typical example is a multi-phased development where the main developer sells individual parcels to housebuilders. If the agreement binds only “the Developer” and releases future owners from liability, the housebuilder, as successor in title can legitimately refuse to pay the contribution or deliver the required works. The council is left with unenforceable obligations and no legal route to recover the mitigation it relied upon.

Release clauses should not be overlooked. Properly drafted release clauses ensure that successors in title inherit the liability, preventing loss of contributions and safeguarding long‑term delivery. Without them, even well‑negotiated agreements can collapse the moment ownership changes.

Internal workflow delays undermine delivery

Developers frequently raise concerns about delays in completing planning agreements and often, the cause is not the drafting itself. Late instructions, missing information and slow internal reviews can turn a straightforward agreement into a long, drawn‑out process. These delays frustrate developers, stall delivery, and place unnecessary pressure on officers who are already managing heavy caseloads.

A typical example highlights how easily this happens. A developer may submit a draft agreement and expect quick turnaround, but the LPA may still be waiting for consultation responses, internal sign-offs or dealing with resource constraints. These delays often stem from gaps in the internal workflow.

Structured workflows, supported staff and consistent templates dramatically reduce turnaround time, improve internal capacity and minimise resource implications across the planning and legal teams. When officers have clear processes and reliable consistent templates, agreements progress quickly and negotiations become smoother.

This need for clearer, more consistent drafting has also been recognised by Government. The August 2026 revision to the NPPF confirms that Government has commissioned work on a national model section 106 template for medium sized sites, which is currently out for consultation. That would be welcome: good templates drive consistency, reduce avoidable delay and help narrow the issues. They are not, however, a substitute for careful, scheme‑specific drafting. Every agreement will still require negotiation and site-specific drafting including, realistic triggers, secure financial provisions, robust monitoring and indexation clauses. Authorities should also resist the risk of a template being watered down through over‑compromise; standard wording must not erode enforceability or weaken mitigation. A national template may improve consistency, but the objective remains unchanged: deliver an agreement that is clear and defensible, safeguarding public funds over the life of the scheme.

Strong drafting is not about adding complexity: it is about creating clarity, consistency and workable processes. The five essentials highlighted above show how small, targeted improvements can transform an agreement from vulnerable to fully enforceable. By addressing these five common pitfalls, local authorities can safeguard public funds, strengthen delivery and ensure long-term enforceability.

Small tweaks really do make big improvements!

Aisha Khawar is the Head of Planning & Highways at ViaPlan.

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

LinkedIn: Feed | LinkedIn

Instagram: https://www.instagram.com/viaplan_/