Scottish Planning Series: Planning Circular 1/2010: Annex to Circular 1/2010: Planning Agreements. Planning Obligations And Good Neighbour Agreements

BACKGROUND

3. The Planning etc (Scotland) Act 2006 (the 2006 Act) amends the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) replacing the existing section 75 with a revised section 75 and adding new sections 75A -75G.

4. Sections 75, 75A, 75B and 75C deal with planning obligations. These were previously known as planning agreements or 'section 75 agreements'. Section 75 sets out the framework for planning obligations including such matters as;

• What a planning obligation may do, that it may contain conditions and the extent to which it may require the payment of monies, etc;
• Who can enter into a planning obligation;
• That a planning obligation (to which the owner is a party) may be registered in the General Register of Sasines or the Land Register of Scotland, making it enforceable against future owners or occupiers of the land; and
• The provision of powers for planning authorities to enforce the terms of an obligation through direct action.

5. Section 75A establishes 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 follows on from that and establishes a right of appeal to the Scottish Ministers where the planning authority refuse the application or fail to determine it within the set time period of two months. The period of two months starts from the date on which the application is taken to have been validated in accordance with regulation 4 of the Town and Country Planning (Modification and Discharge of Planning Obligations) (Scotland) Regulations 2010.

6. 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 relevant instrument 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. The Planning etc. (Scotland) Act 2006 (Saving and Transitional Provisions) Order 2010 provides that section 75C does not apply to planning agreements entered into before 1 February 2011.

7 Sections 75D-75G relate to good neighbour agreements ( GNAs). The sections follow a similar layout 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 in a similar fashion to section 75C.