Planning Circular 3/2012: planning obligations and good neighbour agreements (revised 2020)

1. Introduction

1. Scottish Planning Policy underlines the important role of the planning system in supporting the Scottish Government's purpose of increasing sustainable economic growth. The Scottish Government is committed to an inclusive plan-led system and to planning applications being determined through a transparent process of decision making. The planning service should support the delivery of high quality sustainable places in support of the Government's purpose and aspire to high levels of performance and customer service. For development management this requires processes, procedures and an approach that delivers certainty and speed of decision making.

2. This Circular sets out the circumstances in which planning obligations and good neighbour agreements can be used and how they can be concluded efficiently. Planning authorities should promote obligations in strict compliance with the tests set out in this circular. In developing planning obligations, consideration should be given to the economic viability of proposals and alternative solutions should be considered alongside options of phasing or staging payments. Concluding planning obligations, or good neighbour agreements, should not delay the benefits of appropriately planned development that is generally in accordance with policy nor add significant costs for developers and infrastructure providers. The requirement for planning obligations should be identified as soon as possible and relevant parties brought together to ensure that the process flows as smoothly as possible.

3. Planning authorities should ensure that, where obligations under s75 of the Act are required, they are concluded as a matter of urgency. The planning performance framework incorporates consideration of the whole process leading to issue of the decision. Lengthy delays in concluding obligations will have an adverse impact on the reputation and performance of the planning system.

4. This Circular details Scottish Government policy on the use of planning obligations, including unilateral obligations, and good neighbour agreements made under section 75 and section 75D respectively, of the Town and Country Planning (Scotland) Act 1997 as amended by the Planning etc. (Scotland) Act 2006 and the Planning (Scotland) Act 2019.

5. The Circular also covers provisions set out in the following instruments:

• The Town and Country Planning (Modification and Discharge of Planning Obligations) (Scotland) Regulations 2010 ( SSI 2010 No.432)
• The Town and Country Planning (Modification And Discharge of Good Neighbour Agreement) (Scotland) Regulations 2010 ( SSI 2010 No.433)
• The Planning etc. (Scotland) Act 2006 (Saving and Transitional Provisions) Order 2010 ( SSI 2010 No. 431)
• The Planning etc. (Scotland) Act 2006 (Saving and transitional Provisions) Amendment Order 2011 ( SSI 2011 No. 348)
• The Planning (Scotland) Act 2019 (Commencement No.5 and Saving, Transitional and Consequential Provisions) Regulations 2020 (SSI 2020 No. 294)

Background

6. The Planning etc. (Scotland) Act 2006 (the 2006 Act) amended the provisions in the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) covering planning obligations (previously known as planning agreements). References to 'the Act' are to the amended legislation.

7. Sections 75, 75A, 75B and 75C deal with planning obligations. Section 75 sets out the framework for planning obligations including:

• The scope and purpose of a planning obligation
• That a planning obligation may contain conditions and the extent to which it may require the payment of monies, or provision of infrastructure
• That a planning obligation (to which the owner is a party) may be registered in the Land Register of Scotland or the General Register of Sasines, making a planning obligation enforceable against future owners or occupiers of the land
• The provision of powers for planning authorities to enforce the terms of an obligation through direct action

8. Section 75A creates a formal process whereby a person against whom a planning obligation is enforceable may apply to the planning authority to have the obligation either modified or discharged. Section 75B establishes a right of appeal to the Scottish Ministers where the planning authority refuses the application or fails to determine it within two months. The period of two months starts from the date on which the application is taken to have been made^[1].

9. Section 75C addresses the liability of former and incoming owners for compliance with a planning obligation. In particular section 75C(1) sets out that, unless the agreement or unilateral obligation containing the planning obligation states otherwise, a previous owner may be held severally liable with the current owner for any work that should have been carried out or monies that should have been paid under the terms of an obligation. Section 75C does not apply to planning obligations created by agreements entered into before 1 February 2011^[2].

10. Sections 75D-75G relate to Good Neighbour Agreements ( GNAs). The sections follow a similar approach to those relating to planning obligations, with section 75D setting out who can enter into a GNA. Sections 75E and 75F set out, respectively, the framework for applications to modify or discharge a GNA and for any subsequent appeal to the Scottish Ministers. Section 75G deals with continuing liability of former owners.

Previous Circulars and guidance

11. This Circular replaces and revokes Circular 1/2010 and the Annex to Circular 1/2010. It also translates into policy the advice contained in the Chief Planner's letter of November 4, 2011 regarding occupancy restrictions. This is a revised version reflecting legislative changes that came into force on 18 November 2020.