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

PLANNING OBLIGATIONS

Unilateral obligations

8. The revised section 75 makes provision that a person may unilaterally propose and draft a planning obligation in respect of land which they own or control. The existence of a unilateral obligation would not preclude the planning authority seeking an obligation where there were matters which the planning authority considered should be the subject of a planning obligation and such matters were not sufficiently addressed by any other obligation (including any unilateral obligation) in place. A planning authority should not however seek a planning obligation that simply sought to duplicate the terms of a unilateral agreement.

9. As with any other planning obligation the relevant instrument (to which the owner of the land is party) containing a unilateral obligation may be registered in the Land Register of Scotland or recorded the General Register of Sasines as appropriate. Such registration may be undertaken by the owner of the land. Once registered the obligation is, unless it specifically provides otherwise, enforceable by the planning authority against incoming owners of the land. In so far as an obligation may contain negative obligations it is also enforceable, as with other planning obligations, against the tenant or occupier of the land.

Enforcement of operations required by a planning obligation

10. Section 75(7) of the 1997 Act (as amended) provides a power for planning authorities, where operations required to be carried out by a planning obligation have not been undertaken, to enter the land and carry out the operations themselves. Any expenses incurred in doing so may be recovered from the person or persons against whom the planning obligation is enforceable. Before taking any direct action the planning authority must give that person or persons a minimum of 21 days notice of their intentions.

11. A person against whom an obligation is enforceable is generally the owner of the land but may also be, depending on the obligation, a tenant or any other person who has use of the land.