Planning Obligations and Good Neighbour Agreements: draft guidance
Draft guidance for comments on how planning obligations can be used to make developments acceptable, including advice on development planning and addressing cumulative impacts.
2: Legislation
6. 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. References to 'the Act' and to sections are to the provisions of the 1997 Act, as amended by the Planning etc. (Scotland) Act 2006 and the Planning (Scotland) Act 2019.
7. Sections 75, 75A, 75B and 75C deal with planning obligations. Section 75 sets out the framework for planning obligations. It provides:
- The scope and purpose of a planning obligation
- That a planning obligation may contain conditions
- That a planning obligation may be entered into unilaterally or by agreement
- That a planning obligation (to which the owner of the land to which the obligation relates 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
- 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 the specified period. That period is two months from the date on which the application is taken to have been made[1]. Section 3.5 of this Circular provides more detail on modification and discharge of planning obligations, and section 3.5.6 deals with appeals.
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 and what it can cover. 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. Section 4 of this Circular provides more detail on GNAs.
11. Sections 35 and 36 of the Planning (Scotland) Act 2019 have not yet been brought into force. When they are, section 35 will amend section 75 and 75A to require planning authorities to publish individual planning agreements and notices of determination. Section 36 will amend section 36 of the 1997 Act (“Registers of applications etc.”) to require planning authorities to prepare and publish annual reports of the planning obligations entered into in that year.