Control switches

In previous articles I have focused on intended changes to the regulatory framework for planning obligations/s 75 agreements, listed buildings and the control of demolition. There have been a number of recent and important regulatory moves on these topics that are of importance to all who practise in property law, and these are summarised below.

Planning obligations/section 75 agreements

The Planning etc (Scotland) Act 2006 (Saving and Transitional Provisions) Amendment Order 2011 (SSI 2011/348) came into force on 14 November 2011. It confirms that (1) s 75 of the Town and Country Planning (Scotland) Act 1997, and (2) s 75A, concerning modification or discharge of a s 75 obligation, along with s 75B providing for appeal in cases of refusal or deemed refusal, will apply with retrospective effect to agreements entered into under s 75 before 1 February 2011.

Section 75C, which imposes (in certain circumstances) continuing liability of former owners in respect of a planning obligation, will not have such retrospective effect.

The Order follows a letter from the Scottish Government dated 25 July 2011, which sought to end (but did not) a period of uncertainty surrounding the retrospective nature of these provisions in relation to planning agreements entered into before 1 February 2011.

Listed buildings

The Historic Environment (Amendment) (Scotland) Act 2011 is designed to improve the management and protection of Scotland’s historic environment.

Section 18 of the Act will introduce a new right for any person to apply to the Scottish Ministers for a certificate of immunity that a building will not be listed for a period of five years. Once this certificate is issued, planning authorities will not be able to serve a building preservation notice in respect of the building during this time. However if an application is made but a certificate is not granted, the outcome is likely to be the listing of the building by the Scottish Ministers. Therefore careful professional judgments must be made on whether the building in question meets the criteria for listing under the Scottish Historic Environment Policy (“SHEP”).

The possibility of this new provision being deployed by hostile third parties opposed to development could be an unintended outcome of the legislation.

Section 20(3) of the Planning etc (Scotland) Act 2006 (which came into force on 1 December 2011) amends the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 on the duration of listed building consent. Planning authorities will retain the right to specify whatever duration they consider appropriate, and where they do not, a default period of three years will apply.

Where an appeal is made on or after 1 December 2011, either in relation to a refusal or deemed refusal of an application for listed building consent or against a listed building enforcement notice, the Town and Country Planning (Appeals) (Scotland) Regulations 2008, as amended, will apply to the processing of the case. The right to be heard by way of a public inquiry or hearing has been removed, and the procedure will be decided by the reporter.

From that date, the period for making an appeal in relation to such a refusal or deemed refusal is reduced from six months to three months.

Control of demolition

The Town and Country Planning (General Permitted Development) (Scotland) Amendment Order 2011 (SSI 2011/357) came into force on 21 November 2011. It adds an additional and important category of “permitted” demolition to which the requirement for “prior notification” does not apply. When the Scottish Ministers revoked the Demolition Direction 2001 in July 2011 they indicated that they would consider amending class 70 of the 1992 Order to reduce the regulatory burden resulting from that revocation.

The new and additional category under the 2011 Order to which permitted development applies (under class 70), but to which the requirement for prior approval does not, is any building other than a “qualifying building” which is a dwellinghouse, or a building containing a flat, or a building having a mutual wall with or main wall adjoining a dwellinghouse or a building containing a flat.

Under the 1992 Order the existing category of “excluded demolition” to which permitted development applies but the requirement for prior approval does not, will continue to apply. This covers:

• land which is subject to planning permission for redevelopment, and demolition is necessary to implement that planning permission;
• where demolition is required or permitted under any enactment;
• where demolition is required under a s 75 agreement.

It is important to be aware that the permitted development right under class 70 to demolish buildings does not apply:

• to any building which has been rendered unsafe and uninhabitable by action or inaction and where temporary support or repair measures are practicable;
• where that development requires an environmental impact assessment;
• if there is a breach of a condition or limitation of planning permission or deemed planning permission;
• it relates to an unlawful use; and
• where permitted development rights have been removed by a direction.

These rights are also qualified if the development is likely to have a significant effect on a European site under the Habitat Regulations 1994. There are in addition further statutory controls on the demolition of certain buildings (e.g. listed buildings, buildings in conservation areas and scheduled ancient monuments).