Final brick in place

On 1 February 2011 the planning obligations and good neighbour agreements regime came into force. This is the last of the radical reforms to the planning system contained in the 2006 Planning Act. It is relevant to all solicitors advising in property law.

This regime is given effect by new ss 75-75G of the 1997 Planning Act.

It is supported by two new sets of regulations (SSI 2010/432 and 433), both of which came into force on 1 February. The Scottish Government has also published an annex to Circular 1/2010 providing helpful advice.

Planning obligations replace the system of planning agreements under the previous s 75 of the 1997 Act. That system has increasingly been used by planning authorities to recover contributions from developers towards the delivery of essential infrastructure such as roads, education, water, and affordable housing. The previous regime operated to ensure that planning permission for a particular development would not be issued until a planning agreement had been registered, and that will also be the case for planning obligations. The importance of registration is that planning obligations then bind successors in title. There was formerly no statutory right for any party to appeal the terms of an agreement, a particular criticism which has been addressed in the new regime.

The key changes are:

Section 75

This sets out a framework for planning obligations and in particular what they may do, conditionality, and the extent to which they may require monies; who can enter into a planning obligation; unilateral obligations; effects of registration; and enforcement by the planning authority of the terms of a planning obligation.

Section 75A

This establishes a formal right for a person against whom a planning obligation is enforceable to apply to a planning authority to have it discharged or modified. Along with the right of appeal, these are very welcome provisions, as parties’failure to agree could often lead to a stalemate unless the agreement provided for review or arbitration.

The regulations prescribe the manner and form of an application. The applicant must set out the grounds on which the modification or discharge is sought. Given that planning authorities will require to take account of any changes in circumstances, it is important that the basis for the application is clearly set out. The authority has a duty to notify interested parties, who have a right to submit representations.

The authority cannot modify the obligation otherwise than as set out in the application, and will have regard to the policy tests for requiring planning obligations as set out in Circular 1/2010.

There is a divergence of opinion on whether this right and indeed the right of appeal apply to planning agreements entered into prior to 1 February 2011.

Section 75B

Where an application is refused or the planning authority fail to give notice of their determination within two months (deemed refusal), the applicant can appeal to the Scottish Ministers. The deadline for appealing is three months beginning with the date of the authority’s decision or the end of the two month period.

Depending whether the appeal relates to discharge or modification, ministers may discharge the obligation; determine that the obligation should be modified in line with the appeal; or refuse the appeal, in which event the obligation continues to have effect.

Section 75C

This provides that a person who enters a planning obligation will not cease to have liability when they cease to be owner unless the obligation specifically so provides. Absent such provision, a previous owner will have continuing and several liability along with the current owners. This may be a significant liability and it is a matter that will require to be addressed in the drafting of the planning obligation.

Sections 75D-75E

A good neighbour agreement (GNA) is an agreement between a landowner, a developer and a qualifying community body. A GNA may govern operations or activities relating to development or the use of land either permanently or temporarily. The example given in the circular is the provision of information to the community body regarding the nature and progress of development on a site. The planning authority is not a party to a GNA; enforcement will be undertaken by the community body.

It is considered that GNAs would only have a role to play in major or controversial development and it is too early to make a prediction on their uptake. If a GNA is registered it will bind successors in title. There are broadly similar provisions for both applying to a planning authority to modify or discharge a GNA and subsequent appeal to ministers; and for continuing liability for former owners, which will apply unless specifically addressed in the agreement.