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

4. Modification or Discharge of a Planning Obligation or Good Neighbour Agreement

61. The processes for submission of an application for modification or discharge of a planning obligation or a GNA, and subsequent determination of the application by the planning authority, are broadly similar. Differences in the relevant procedures are detailed below.

Modification or discharge of a planning obligation

62. Section 75A(1) provides that a planning obligation may be modified either:

• By agreement between the person (or persons) against whom that obligation is enforceable and the planning authority; or
• By the planning authority following an application for modification or discharge under  section 75A(2) or the Scottish Ministers on appeal under section 75B.

63. There is no set procedure for negotiating the modification or discharge of a planning obligation by agreement. However, as noted in paragraph 77, any determination to modify or discharge a planning obligation – or agreement to do so – does not take effect until the date it has been registered or recorded in the appropriate register. Any agreement to modify or discharge a planning obligation under section 75A(1)(a) should therefore be capable of being registered or recorded. The right of appeal to Scottish Ministers under section 75B only arises in certain circumstances (set out below) following an application under section 75A. There is no right of appeal to Scottish Ministers where negotiations to modify or discharge a planning obligation by agreement break down.

Submitting an application for modification or discharge

64. The Town and Country Planning (Modification and Discharge of Planning Obligations) (Scotland) Regulations 2010 set out the procedures that apply to applications made under section 75A. Regulation 3 specifies the items and information an applicant is to submit to the planning authority. Regulation 4 stipulates that the application is deemed to have been made on the date on which the last of these items or information is received (the validation date).

65. Planning authorities have discretion (regulation 6) to require an applicant to supply any further information, documents or material they consider necessary to enable them to deal with the application. Where a planning authority seeks further information this does not affect the validation date; i.e. the validation date remains the date on which the last item or information required under Regulation 3 is received.

Notification of application to interested parties

66. Under Regulation 3, the applicant must provide to the planning authority a statement setting out, to the extent known to the applicant, the names and addresses of any other parties to the planning obligation and of any other interested parties. An interested party is defined as (other than the applicant) the owner of the land and/or any other person against whom the planning obligation is enforceable.

67. On receipt of an application, it is then the responsibility of the planning authority to notify these interested parties of the name of the applicant (regulation 5). The notification must, in addition to providing details of the application and the modification sought, state how representations can be made to the planning authority and the date by which they must be made. This is a minimum of 21 days from the date notification is served.

68. The planning authority is only required to serve notice to interested parties at the addresses identified by the applicant, and is not required to make any further investigations where parties cannot be contacted using this information.

69. The Town and Country Planning (Modification and Discharge of Good Neighbour Agreement) (Scotland) Regulations 2010 make equivalent provision in respect of the procedures that apply to applications under section 75E and to appeals under section 75F. Such applications may be made by either party to the GNA. Section 75E(2) provides that this should only be done where the parties are unable to reach agreement on the modification or discharge of the GNA. Regulation 3(2)(i) of the 2010 regulations therefore requires that any application is accompanied by evidence that attempts have been made to negotiate the amendment of the GNA. Failure to supply this evidence will mean that the application cannot be validated.

Determination of an application for modification or discharge

70. Section 75A(5) provides that the planning authority must notify their decision to the applicant – and to any non-applicant against whom the obligation is enforceable – within the prescribed period. The prescribed period, as set out in regulation 7, is the period of two months after the date of validation. Regulation 7 also requires notice to be given to every interested party, which would include the owner (if not the applicant).

71. In determining an application under section 75A the planning authority may decide that the obligation:

• Is to continue to have effect without modification (i.e. refuse the application)
• Is discharged; or
• Is to have effect subject to modifications. 

72. Where an application relates to more than one planning obligation, the planning authority may make a separate determination in relation to each planning obligation.

73. It is also open to the planning authority to discharge a planning obligation or to modify the planning obligation even if the discharge or modification was not sought in the application. However, the consent of the applicant must be obtained by the planning authority before making such a determination (see section 75A(4A)). Where the authority propose to modify the planning obligation in such a way that would put or increase a burden on any non-applicant, that person’s  consent must be obtained before making such a determination (see section 75A(4B)). Where the planning authority is required to seek consent by virtue of section 75A(4A) or section 75A(4B), this should be obtained in writing. 

74. In the case of applications under section 75E (relating to modification or discharge of a GNA), the planning authority may determine that the GNA be discharged, that it continue in force with no modification, or that it be modified as per the amendment sought in the application. The legislation does not permit the planning authority to determine that the GNA should be subject to any modification (or modifications), other than that which was set out in the application.

75. The provision of a formal process by which a planning obligation can be modified or discharged does not alter the criteria set out elsewhere for determining whether or not an obligation is required. Any application for modification or discharge should be considered against the policy tests set out in paragraphs 15-25.

76. This is not to say that there should be a presumption against any application. The planning authority should take into account any changes in circumstances; for example, it may be that external factors affecting the development mean that the obligation is no longer reasonable and that a modification to reflect the change in circumstances is appropriate. It is therefore important that the applicant clearly sets out their grounds for seeking a modification and the exact terms of the modification sought.

77. Where a planning obligation has been registered in the Land Register of Scotland, or recorded in the General Register of Sasines, any determination to modify or discharge the obligation or any agreement to do so does not take effect until the determination or the agreement, as the case may be, is registered or recorded in the appropriate register (see section 75A(6) and (7)). It is a matter for the applicant to ensure that this is done in order that the determination can take effect.