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

MODIFICATION OR DISCHARGE OF A PLANNING OBLIGATION OR GOOD NEIGHBOUR AGREEMENT

19. 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 for the most part similar although there are some minor differences as detailed below.

Modification or discharge of a planning obligation

20. Section 75A(1) sets out that, where a person against whom a planning obligation is enforceable wishes to modify or discharge the obligation, they have to apply (under section 75A(2)) to the planning authority seeking their agreement for the modification or discharge.

Submitting an application for modification or discharge

21. The Town and Country Planning (Modification and Discharge of Planning Obligations) (Scotland) Regulations 2010 set out (regulation 3) 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).

22. 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

23. 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.

24. On receipt of an application, it is then the responsibility of the planning authority to notify these interested parties of the details 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.

25. 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.

Application for the modification or discharge of a good neighbour agreement

26. As with applications for modification or discharge of planning obligations, the planning authority may determine (depending on whether the applicant seeks a modification or discharge of the GNA); 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.

27. An application to a planning authority for modification or discharge of a GNA may be made by either party to the GNA. The 1997 Act provides that this should only be done where the parties are unable to reach agreement on the modification or discharge of the GNA . The Town and Country Planning (Modification and Discharge of Good Neighbour Agreement) (Scotland) Regulations 2010 therefore require that any application is accompanied by evidence that attempts have been made to negotiate the amendment of the GNA. Failure to supply this evidence may mean that the application cannot be validated.

Determination of an application

28. The planning authority is to issue notice of their decision in respect of the application within two months of the date of validation.

29. In determining an application the planning authority may, depending on whether the application is for the modification or discharge of the obligation, determine that the obligation be discharged or that the proposed modification to the obligation be made. The authority may also determine that the obligation should continue in its current form. The legislation does not permit the planning authority to determine that the obligation should be subject to any modification other than the modification, or modifications, as set out in the application.

30. 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 11-22 of Circular 1/2010.

31. 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 meant that the obligation is no longer reasonable and that a modification to reflect the change in circumstances was 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.

32. Where a planning obligation or GNA has been registered in the General Register of Sasines or in the Land Register of Scotland, any determination to modify or discharge the obligation or GNA does not take effect until the determination is also registered in the appropriate register. It is a matter for the applicant to ensure that this is done in order that the determination can take effect.