Planning: new route to vary an agreement

Section 37 of the Planning (Scotland) Act 2019 makes some significant and helpful changes to the modification and discharge of planning obligations (s 75 agreements). It came into force on 18 November 2020, through the Planning (Scotland) Act 2019 (Commencement No 5 and Saving, Transitional and Consequential Provisions) Regulations 2020. Section 37 amends s 75A and s 75B of the Town and Country Planning (Scotland) Act 1997, which address the modification and discharge of planning obligations and the appeal regime.

Until 18 November 2020, applications to discharge or modify a planning obligation had to be made by way of a formal application under s 75A of the 1997 Act (not dissimilar in many respects to a planning application), with a requirement to notify interested parties and provide them with an opportunity to respond and participate in the decision and any appeal.

Whilst this process was helpful in providing an opportunity for any party (against whom the obligation is enforceable) to revisit the terms of a planning obligation, it was clearly a matter of concern for planning authorities, as these obligations are the principal legal mechanisms that control the delivery of developer contributions towards necessary transport, educational and social infrastructure and affordable housing. A planning obligation is registered against the title of the development and is usually binding on all landowners in relation to that title. Solicitors will require to check the terms of a planning obligation particularly when acting for a purchaser of land affected by a planning obligation.

Prior to 18 November 2020, a planning authority to whom a s 75A application was made could only determine that the planning obligation was to continue without modification, was to be discharged, or was to have effect subject to the modifications specified in the application. Section 75B provided for a right of appeal against a decision (or deemed refusal by a planning authority) to the Scottish ministers – whose decision-making is normally delegated to a reporter.

Two ways instead of one

The amendments by s 37 of the 2019 Act have a number of important effects, principally providing greater flexibility combined with a number of safeguards to protect applicants and non-applicants (who may not participate in the process but will nevertheless be directly affected).

As from 18 November 2020 there are two separate methods (rather than the single s 75A route) of modifying or discharging a planning obligation. Section 75A (as amended from 18 November) provides that a modification or discharge of a planning obligation may be effected by means of either:

• an agreement in writing among the planning authority and all of the persons against whom the planning obligation is enforceable (s 75A(1)(a)); or
• an application under s 75A, or following thereon an appeal to the Scottish ministers (ss 75A(1)(b) and 75B).

Modification by agreement

Provided all the parties (and that means the planning authority and all of the parties against whom the planning obligation is enforceable) are in agreement, it may be cost-effective and efficient to proceed with an amending agreement or discharge rather than a formal application under s 75A(1)(b). Amending agreements or discharges do not take effect until they are recorded or registered. There is no appeal available should parties fail to agree, and in such circumstances, the applicant would have to make an application to the planning authority under s 75A(1)(b).

Application to modify or discharge

There are important qualifications and safeguards imposed for “non-applicants” in relation to the terms of a planning authority’s decision and an appeal decision of Scottish ministers. The authority, and ministers, are prohibited from modifying a planning obligation to put or increase a burden on any non-applicant, unless they have obtained that person’s consent before making the determination.

The authority, and ministers, are also enabled (subject to the prohibition above) to propose an alternative modification that was not expressed in the applicant’s original application. Where they propose to discharge the planning obligation – despite that not being sought in the application – or to modify it in a way that is not sought in the application, they must obtain the applicant’s consent before making the determination. Modifications or discharges do not take effect until they are recorded or registered.