Planning Obligations and Good Neighbour Agreements: draft guidance

3: Planning Obligations

3.1 Key considerations

12. Under section 75, a planning obligation is an obligation which does any of the following:

• Restricts or regulates the development or use of land, which may include
• Requiring specified operations or activities to be carried out, or
• Requiring the land to be used in a specified way

and / or

• Requires the payment of a lump sum or of periodical payments.

13. Planning obligations may be used for a range of planning purposes. However, they most often take the form of an agreement between a developer and the planning authority to overcome obstacles to the grant of planning permission and ensure development complies with policies, for example to secure the provision of necessary infrastructure or affordable housing. In this way, planning obligations can enable a proposed development to be permitted which would otherwise be unacceptable.

14. All planning obligations must strictly comply with the tests set out in this Circular.

15. In line with the Infrastructure First approach, the need for infrastructure to enable development on allocated sites, and the intention to secure it through planning obligations should be set out in the local development plan, in accordance with the guidance in section 3.2 of this Circular. Policies on the use of planning obligations to secure affordable housing, on or off site, should also be set out. This will allow developers and landowners to take these requirements into account in their financial assessments and expectations. Where additional obligations are needed in relation to the particular circumstances of individual developments, these should be identified by the planning authority as early as possible in the process.

16. Planning obligations may add to development costs, and as a result can impact on the economic viability of development proposals. It is a policy decision for the planning authority as to whether necessary infrastructure should be funded through planning obligations, taking local development needs and economic circumstances into account. Development viability should be a consideration in developing policies and negotiating individual planning obligations, and alternative solutions should be considered alongside options of phasing or staging payments.

17. Planning obligations should be concluded as quickly as possible, to minimise delay to planning decisions and the delivery of development. Early engagement between parties is encouraged, and templates or model clauses should be used to address common issues. The process of negotiating and concluding planning obligations needs to be effectively managed, and monitoring should be in place to ensure that obligations are met and to track the use of financial contributions.

3.1.1 Policy tests

18. Section 75 provides a very broad description of what a planning obligation may do. However, this must be taken in the context of the planning system as a whole. Planning authorities must consider each planning application on its merits and reach a decision in accordance with the development plan, unless material considerations indicate otherwise. They must not take into account matters which are unrelated to the proposed development. Thus a planning obligation made in connection with a planning application should not seek to provide benefits which are unconnected with the development: such an obligation should be given no weight in the planning decision, whether it is requested by the authority or offered by the developer. This principle is central to maintaining confidence in the planning system and avoiding any perception of buying and selling of planning permission.

19. The five policy tests set out below should be strictly adhered to. Authorities should bear in mind that an application to modify or discharge may be made at any time. A refusal to grant planning permission because of a failure to agree a planning obligation, or a refusal to modify or discharge the obligation, may also be subject to local review or appeal.

20. Planning obligations made under section 75 of the Town and Country Planning (Scotland) Act 1997 (as amended) should only be sought where they meet all of the following tests, as set out in NPF4:

• necessary to make the proposed development acceptable in planning terms
• serve a planning purpose
• relate to the impacts of the proposed development
• fairly and reasonably relate in scale and kind to the proposed development
• be reasonable in all other respects

21. The tests are interlinked, and the first test is sometimes used as an overarching summary of the purpose of planning obligations. Where a particular development would not be acceptable in a given location, due to its impacts on land use, the environment or infrastructure, a planning obligation may be used to ensure those impacts are mitigated, thus making the development acceptable and allowing for planning permission to be granted.

Necessity test

22. Planning obligations or other legal agreements should not be used to resolve issues that could equally be resolved in another way. Where a planning permission cannot be granted without some restriction or regulation, and before deciding to seek a planning obligation, the planning authority should consider the following options in sequence:

i) Planning conditions :Planning conditions are generally preferable to a planning or legal obligation, not least as they are likely to save time and money for all concerned. For example, conditions can require a plan or strategy to be agreed before a certain point in the development’s progress, rather than having to be agreed before planning permission is granted. The guidance contained in Circular 4/98: The Use of Conditions in Planning Permissions should be followed.

ii) Alternative legal agreements, for example, an agreement made under a different statute, such as the Local Government (Scotland) Act 1973, the Countryside (Scotland) Act 1967, the Sewerage (Scotland) Act 1968, the Roads (Scotland) Act 1984 etc. A planning obligation is not necessary where the obligations for a landowner or developer may be implemented, for example, by a one-off payment towards the cost of infrastructure provision or the maintenance of open space.

While it would be for a planning authority to satisfy itself that a legal agreement was required, a legal agreement made under other legislative powers would not necessarily be required to meet all the policy tests required of planning obligations.

iii) Planning obligations : Planning authorities should be clear that a planning obligation is only necessary where successors in title need to be bound by the required obligation, for example where phased contributions to infrastructure are required, or to secure affordable housing in the longer term.

Planning purpose test

23. Planning authorities should satisfy themselves that an obligation is related to the use and development of land. Where infrastructure and affordable housing requirements can be identified in advance, this judgement should be rooted primarily in the development plan – see section 3.2 of this Circular. This should enable potential developers to be aware when undertaking development appraisals and in designing their proposals of:

• the likelihood of a planning obligation being sought, and
• the likely financial requirements of that planning obligation.

Relationship to proposed development test

24. Planning obligations must relate to the development being proposed. Where a proposed development would either create a direct need for particular facilities, place additional requirements on infrastructure (including cumulative impact when considered with other development) or have a damaging impact on the environment or local amenity, these may be barriers to the grant of planning permission. A planning obligation could be used to secure measures to overcome or mitigate those identified barriers. There should be a clear link between the development and any mitigation offered as part of the developer's contribution.

25. Planning obligations should not be used to extract advantages, benefits or payments from landowners or developers which are not clearly related to the proposed development. The obligation should demonstrate that this test is met by specifying clearly the purpose for which any contribution is required, including the infrastructure to be provided.

Scale and kind test

26. Planning obligations must fairly and reasonably relate in scale and kind to the proposed development. Developers may, for example, reasonably be expected to pay for, or otherwise contribute towards the provision of, infrastructure which would not have been necessary but for the development. In assessing such contributions planning authorities may take into account the cumulative impact of a number of proposed developments, and use obligations to share costs proportionately. If the impact of a particular development on the infrastructure is negligible (“de minimis”) then it is not appropriate to require a contribution from that development, An effect of such infrastructure investment may be to confer some wider community benefit but contributions should always be proportionate to the scale of the proposed development. Attempts to extract excessive contributions towards the costs of infrastructure or to obtain extraneous benefits are unacceptable.

27. Determining whether contributions are proportionate also includes consideration of their potential impact on the viability of the development. Further discussion of viability is set out in section 3.1.2 below.

28. Planning obligations should not be used to resolve existing deficiencies in infrastructure provision or to secure contributions to the achievement of wider planning objectives which are not strictly necessary to allow permission to be granted for the particular development. Situations may arise where an infrastructure problem exists prior to the submission of an application for planning permission. Where the need to improve, upgrade or replace that infrastructure does not arise directly from the proposed development then planning authorities should not seek to address this through a planning obligation. For example, if a facility needs to be replaced and expanded, planning obligations should only be expected to fund the additional capacity attributable to the new development; other funding would need to be identified to remedy the existing problem. It is inappropriate to grant planning permission for a development which would demonstrably exacerbate a situation which was clearly already unsatisfactory, unless there is a plan in place to address the issue.

Reasonableness test

29. Planning obligations should be reasonable in the circumstances of the particular case. The planning authority should be clear that the requirement in the obligation is so directly related to the proposed development that it should not be permitted without it. The requirement in the obligation should also either

• mitigate the loss of, or the impact upon, some amenity or resource present on the site or in the area prior to the development, or
• provide or contribute to the cost of providing necessary facilities required as a consequence of or in connection with the development.

30. The timeframe for building infrastructure should be taken into account. It may be difficult to show that facilities are directly related to the development, if they are not provided until many years after it is completed. The planning authority should also be able to show that the cost of the proposed infrastructure is reasonable, taking into account any relevant guidance or standard specifications, and other policies or legislation with which the infrastructure provider needs to comply.

31. In addition, when determining whether a planning obligation is required, planning authorities should take account of the existence of any other agreements or conditions relating to infrastructure provision that already apply to the development, and whether the overall burden is reasonable.

3.1.2 Viability

32. Entering into a planning obligation may have financial consequences for developers which could make proposals uneconomic. The impact of contributions on the viability of a development is an issue to be considered in terms of the “scale and kind” test.

33. A range of factors can affect the viability of a development. These include the sales value (or revenue) achievable, the costs of development (for example, construction costs and price paid for land) and the profit sought by the developer, as well as any developer contributions required. It is relevant to note that what is considered an unviable development site for one developer, may be viable for a different developer with different proposals and expectations. An open book approach is therefore encouraged when considering viability.

34. Cash flow can also be affected where substantial sums of money have to be paid either before the development gets under way or at an early stage in construction. Authorities should consider whether it would be reasonable to accept staged or phased payments to support the overall viability and success of a project.

35. This is particularly relevant where infrastructure requires to be put in place before the development is completed, but the cost of doing so would make the development unviable. Planning authorities should consider the possibility of infrastructure being funded, and development thus enabled, through other mechanisms. The costs of such an approach (which may include borrowing costs) would then be recovered through staged payments as development progresses. This may also include costs being recovered from developments which are consented after the infrastructure is in place. Further advice on such approaches is provided in section 3.2 on development planning.

36. Where there is dispute over the viability impact of developer contributions requested, it may be helpful to seek a viability assessment from a third party, such as the District Valuer Services. A transparent approach to considering viability issues can contribute significantly to identifying solutions and reducing delays.

37. It should be noted that, even if it is found that the contribution would cause the development to become unviable, it does not necessarily mean that the contribution should be reduced. A judgement needs to be made as to whether it is in the public interest for the development to go ahead without the contribution. This applies at the original decision on the planning application or in the context of an application for modification or discharge, and any local review or appeal.

3.1.3 Restrictions on use of land and buildings

38. While the most common use of planning obligations is to ensure the provision of infrastructure to make a development acceptable in planning terms, there is a limited role for obligations in restricting the use of land or buildings.

39. Such restrictions have historically been used particularly in respect of housing in rural areas. Imposing restrictions on use is rarely appropriate and so should generally be avoided. They can be intrusive, resource-intensive, difficult to monitor and enforce and can introduce unnecessary burdens or constraints. In particular, they may make it difficult for purchasers to obtain a mortgage where there are restrictions on the subsequent sale of the property.

40. In determining an application, it may be appropriate for the planning authority to consider the need for the development in that location, especially where there is the potential for adverse impacts. In these circumstances, it is reasonable for decision-makers to weigh the justification against the potential impacts, for example on road safety, landscape quality or natural heritage, and in such circumstances it may be appropriate for applicants to be asked to make a land management or other business case. Where the authority is satisfied that an adequate case has been made, it should not be necessary to use a planning obligation as a formal mechanism to restrict occupancy or use.

41. Where a planning authority considers that some restriction on use should be imposed, they should consider the options as set out in the necessity test.

3.2 Development planning

42. The process of preparing the development plan should be the point at which consideration of the potential need for and use of planning obligations begins, to support the spatial strategy and the implementation of policies including Infrastructure First. Planning authorities should work with infrastructure providers, other local authority departments and Key Agencies, as well as local communities and the development industry, to identify where development should take place and how constraints can be overcome.

43. Under the development planning system introduced by the Planning (Scotland) Act 2019, the development plan comprises:

• The National Planning Framework
• The Local Development Plan (LDP)

44. There is no longer provision for supplementary guidance to become part of the development plan. Policies requiring planning obligations, including those on developer contributions and affordable housing, should be included in the Proposed Plan, where they will be subject to examination, and subsequently become part of the LDP. However, existing supplementary guidance adopted before 31 March 2025 will continue to be part of the development plan until the planning authority adopt a new LDP. Other local guidance may also continue to be a material consideration in planning decisions, where appropriate.

3.2.1 NPF4

45. The National Planning Framework contains Scottish Government policies which planning authorities are required to take account of in preparing their LDPs. Two which relate particularly closely to planning obligations are Infrastructure First (Policy 18) and Quality Homes (Policy 16e) relating to affordable homes.

Infrastructure First

46. LDPs are expected to take an Infrastructure First approach. As set out in NPF4 Policy 18, this means that: “Infrastructure considerations are integral to development planning and decision making and potential impacts on infrastructure and infrastructure needs are understood early in the development planning process as part of an evidence based approach.”

Local Development Plans:

LDPs and delivery programmes should be based on an integrated infrastructure first approach. Plans should:

• be informed by evidence on infrastructure capacity, condition, needs and deliverability within the plan area, including cross boundary infrastructure;
• set out the infrastructure requirements to deliver the spatial strategy, informed by the evidence base, identifying the infrastructure priorities, and where, how, when and by whom they will be delivered; and
• indicate the type, level (or method of calculation) and location of the financial or in-kind contributions, and the types of development from which they will be required.

47. The Glossary to NPF4 provides a definition of infrastructure for this purpose. We have included this in the Annex to this Circular.

Affordable housing

48. Policy 16e sets out that:

Development proposals for new homes will be supported where they make provision for affordable homes to meet an identified need. Proposals for market homes will only be supported where the contribution to the provision of affordable homes on a site will be at least 25% of the total number of homes, unless the LDP sets out locations or circumstances where:

• i: A higher contribution is justified by evidence of need, or
• ii: A lower contribution is justified, for example, by evidence of impact on viability, where proposals are small in scale, or to incentivise particular types of homes that are needed to diversify the supply, such as self-build or wheelchair accessible homes.

The contribution is to be provided in accordance with local policy or guidance.

3.2.2 Local Development Plans

49. The Local Development Planning Guidance explains the requirements of the development planning process and should be referred to for full details of the process. The following paragraphs summarise how information should be provided to support the use of planning obligations to fund infrastructure. Policies on the use of planning obligations to address other issues, including affordable housing, should be included in a similar way, drawing on the advice on NPF4 policies in the LDP guidance.

50. There are three stages to development planning:

• evidence gathering, with the production of the Evidence Report which undergoes a Gatecheck
• plan preparation, creating the Proposed Plan for consultation and examination, and
• delivery, based on the adopted plan and Delivery Programme

51. The Evidence Report should set out information on existing infrastructure capacity and needs. This “can indicate where there is scope for future growth in line with the infrastructure investment hierarchy, or where intervention will be required to support future development”. In identifying that intervention it may also set out information on whether developers may be required to provide or contribute to certain categories of infrastructure.

52. As part of the spatial strategy and place-based approach, the Proposed Plan should set out what infrastructure is needed in connection with each allocated site, including cumulative impacts, and strategic priorities for delivery. This includes consideration of the transport appraisal. If developer contributions are expected to be sought to mitigate impacts, the policy should describe which sites will be required to contribute to each item, or the methodology for determining this and for calculating the appropriate contribution from each site. The treatment of potential windfall sites that may come forward should also be considered. Where the planning authority considers that a range of different infrastructure solutions may be appropriate, depending on the development coming forward, the parameters of any flexibility should be set out in the Proposed Plan.

53. If contribution zones are used, these should be set out in the Proposed Plan. The policy must demonstrate that each development required to contribute has a real relationship to the proposed infrastructure. It is a matter of policy judgement for the planning authority to determine how the costs of the infrastructure are shared between the developments, so long as they are shared fairly and meet the tests set out in this Circular.

54. The Delivery Programme is required to set out the actions required to deliver policies and proposals contained in the LDP, how those actions are to be undertaken and the timescale for each action. It should identify the costs of the infrastructure required, the planned timing or phasing of delivery and payment, and the funding sources, including the amount to be funded through developer contributions and the formulae by which costs are to be shared. Reference should be made to how development viability has been factored into the funding approach, to support delivery of affected developments within the spatial strategy.

55. The Delivery Programme must be reviewed at least every two years, and is therefore the most appropriate place to provide costs and timings, which may need to be adjusted or refined as delivery of allocated sites and infrastructure progresses. It is also able to take account of windfall sites coming forward, and of changes to the wider economic situation, demographic forecasts, etc. The planning authority should work closely with infrastructure providers and with the local housing authority / RSLs to support alignment with funding programmes and delivery priorities.

56. As delivery of the LDP is dependent on the actions of partners from both the public and private sectors, the planning authority is expected to involve them in early discussions to input into the proposed Delivery Programme, and revisions. The planning authority is required to publish their proposed Delivery Programme alongside the Proposed Plan consultation, and it must be submitted as part of the documentation for the examination of the LDP. The information it contains will be relevant to making representations and to the examination of the Proposed Plan, in terms of scrutinising deliverability of sites.

57. Following adoption of the LDP, the planning authority should keep the need for infrastructure under review. It should maintain an evidence base so that it is in a position to demonstrate the need for the infrastructure required by the LDP in respect of a particular site, should that need be questioned in a planning application or application for modification or discharge of an obligation. The planning authority should be open about any change in infrastructure needs, and ready, of its own initiative, to return contributions already paid towards infrastructure that is no longer necessary.

3.2.3 Cumulative impact

58. Where the cumulative impact of a number of allocated sites creates the need for additional infrastructure, planning authorities may wish to seek contributions on the basis of standard charges and formulae. In order to demonstrate compliance with the tests set out in section 3.1.1 of this Circular, the approach used must ensure that the charges are relevant and proportionate to the impacts of the individual development. This will be assisted by the detail included in the LDP and Delivery Programme to show where additional capacity will be needed, when and in what form it will be delivered, expectations of how much it will cost, and which developments contributions will be sought from.

59. Where the need for new or improved infrastructure is only partly created by new development, the costs should be appropriately apportioned between developers and the body that would otherwise be responsible for funding its delivery.

60. Methods for calculating contributions should be set out in the LDP, together with the level of contributions in the Delivery Programme, in a way that provides transparency and helps landowners and developers predict the size and types of contributions likely to be sought for specific sites or general locations prior to submitting a planning application. The information should include how monies will be held, how they will be used, and in what circumstances they will be returned to the developer.

61. In many cases it is not possible, or not cost-effective, for facilities to be delivered incrementally, so they need to be built at full capacity from the start. As a result it may be necessary to charge some developments in advance of delivering the infrastructure, and others afterwards to recoup funds paid out up front. In addition, in line with more delivery-focused planning and the expectation of a deliverable housing land pipeline, contributions may need to be taken from some sites before the capacity of existing infrastructure is exceeded, in order to fairly divide the costs of planned infrastructure between all developments whose cumulative impact creates the need for it.

62. Where a planning application is not granted because of a failure to conclude a planning obligation any appeal against refusal of the application should consider, amongst all other relevant matters, whether or not the planning authority has highlighted potential development constraints in the development plan or relevant placemaking tools such as development briefs and Masterplan Consent Areas, and whether the authority has provided sufficient detail to demonstrate that the proposed obligation meets the policy tests.

3.3 Development management

3.3.1 Process of agreeing obligations

63. Since the matters to be dealt with by planning obligations are a material consideration in determination of a planning application, the obligation will need to be finalised before the final decision on the grant of planning permission can be made. Where the planning authority requires a planning obligation, applicants should be made aware of this as early as possible.

64. All parties should give a high priority to agreeing the obligation, to avoid delays in the planning system and in the delivery of development. There should be effective cross-service management within the local authority, and liaison with any external agencies involved, to minimise delay and additional costs to all parties. Planning authorities are encouraged to use pre-application discussions with relevant agency involvement, processing agreements, other project management approaches or codes of practice in negotiating planning obligations, so as to make clear the process and deadlines and the issues to be agreed at each milestone. This should help to increase transparency and the efficiency of the planning obligations process. Processing agreements should include any third parties who will be involved in agreeing the obligation, such as landowners.

65. All parties should proceed as quickly as possible to agree the key points to be included in the obligation. This should contain as much financial detail as possible and should make reference to policies and other material (such as standard charges and formulae) contained in the development plan. Ideally this agreement should be reached during pre-application discussions and before seeking a decision on the application. Planning authorities should confirm the agreement of relevant consultees to the key points or Heads of Terms before finally concluding an obligation.

66. In those cases where a planning obligation is considered necessary, some planning authorities will consider an application on the basis that a planning obligation is to be concluded, and will indicate whether they are “minded to grant” planning permission. Any report to the Council or a Committee of the Council considering the application should be able to confirm that the parties are prepared to enter into such an obligation to resolve outstanding matters, and outline the principal components of the obligation under discussion. Applicants must be advised as soon as possible that the planning authority is minded to grant planning permission subject to both parties concluding a planning obligation, setting out the likely key terms of the obligation.

67. It should be noted that an indication that the planning authority is minded to grant an application is not a formal decision. If the planning obligation is not agreed and a decision notice not issued within the statutory timescales, the applicant can seek local review or appeal for non-determination. The planning authority has up to 4 months to determine applications for planning permission for national developments and major developments and up to 2 months to determine applications for planning permission for local developments. Planning authorities and applicants can also agree extended periods for determining applications. If the applicant and landowner do not progress the obligation the planning authority also has the option to refuse the application for not complying with the relevant policies the obligation is addressing.

68. Alternatively, the developer and planning authority have the opportunity to agree a planning obligation at an early stage, and before a decision is reached as to whether planning permission can be granted. If the terms of the obligation have been agreed, it can be registered immediately the planning decision has been made, to allow the consent to be issued quickly. This can reduce delays in the process, by removing the need to negotiate and conclude the obligation only after the authority becomes minded to grant consent.

69. To enable conclusion of the agreement as soon as possible, planning authorities should empower officials to complete the drafting of the obligation, for example around the timing of payments. Planning authorities may wish to use model obligations, clauses, or templates to help speed up the process. These should be developed in discussion with industry representatives to promote acceptance and minimise the need for adjustments to individual agreements.

70. Planning authorities are encouraged to identify specific officers with responsibility for planning obligations, who can undertake liaison and negotiations with developers and provide expertise and advice to other officers. It is important that such officers have an effective understanding both of the requirements for planning obligations set out in the development plan and of development economics, to ensure that requirements are based on an informed understanding of what a development project can reasonably be expected to bear, both as a total cost and in the scheduling of payments for all obligations. They should also have the authority to liaise with other services and agencies to ensure that any obligations or contributions requested meet the policy tests.

3.3.2 Content of planning obligations

71. The following points should be considered in drawing up planning obligations:

• Planning obligations should contain only those matters that are justified when considered against the tests set out in section 3.1.1 of this Circular, and should be restricted to specific purposes. Other matters such as conditions attached to an associated planning permission should not be included.
• Where possible, planning obligations should include a clause enabling them to apply to future consents which are for substantially the same development, without the need to negotiate a new agreement or a variation to the original. This situation may arise, for example, in the context of applications under section 42 of the Act. The future application of the obligation may be subject to specified parameters, for example provided there is no material change to the aspects of the development that determine the amount of contributions required.
• A planning obligation need not apply to the whole “red line” site area on the associated planning application, but only to the area relevant to the matters in the obligation. However, the planning authority should have regard to the enforceability of the planning obligation if the area of land covered by it is less than the whole site area.
• Final purchasers of individual residential properties should normally be excluded from any liability for provision of or contributions to infrastructure under a planning obligation. Restrictions on the use or development of the land may continue to apply.
• Section 75C makes it the default position that former owners continue to be bound by planning obligations and are severally liable for any breach. This may be appropriate in some cases to prevent avoidance, for example by transferring land which the obligation requires to be restored, to a company without assets. However, in most cases it is appropriate for the agreement to exclude liability for former owners except for breaches that occurred while they owned the property.
• Planning authorities should consider using staged payment arrangements throughout the progress of the development, if their funding allows, to minimise the risk associated with transfer or sale of the site to new owners, and to assist developers with cashflow.

3.3.3 Registration

72. Where planning authorities wish the provisions of a planning obligation to be enforceable against successors in title the obligation must be registered in the Land Register, or recorded in the General Register of Sasines, as appropriate.

73. On receipt of an application for registration or recording, the Keeper of the Registers of Scotland will issue an acknowledgement of the date of receipt. This is the date of registration/recording, even where the Keeper's final decision to register or record is taken at a later date. The date of the Keeper’s acknowledgement is therefore normally the trigger for the release of planning permission.

74. There is a small risk that an obligation might be returned, withdrawn or registration refused because of a technical defect, or that the land could be sold before the obligation is registered or recorded. The obligation will not run with the land unless the owner of the land at the time of registration is a party to it, and therefore the development for which permission has been granted could be carried out without being subject to the obligation. However, there are situations where the timeous issue of planning permission can be crucial to the development proceeding. These risks should be managed between the parties, and can be dealt with by way of a provision in the planning obligation or a separate letter. This provision can also record agreement over who should be responsible for registering the obligation.

75. Standard registration criteria for the Land Register of Scotland and the General Register of Sasines apply to planning obligations (including unilateral obligations), Good Neighbour Agreements and determinations as to the modification or discharge of either as follows:

• Reference to the appropriate section of the Town and Country Planning (Scotland) Act 1997 (as amended) should be narrated in the body of the document to be registered.
• Determinations should also include a reference to the date of registration or recording of the planning obligation or GNA to be discharged or modified.
• Documents to be registered should be of self proving status as provided for in the Requirements of Writing (Scotland) Act 1995 and should be accompanied by the appropriate application form and fee. Further details are available from www.ros.gov.uk.
• Documents to be registered in the Land Register should narrate the title number(s) of the property affected. Documents to be recorded in the General Register of Sasine should describe the property affected sufficiently to identify it.

3.3.4 Publication and monitoring

76. The Development Management Regulations^[3] require a summary of the terms of any section 75 planning obligation to be recorded in the Register of Applications maintained by the planning authority.

77. Planning authorities should have mechanisms and procedures in place for confirming that infrastructure, facilities and affordable housing to be provided under planning obligations are delivered. Planning authorities should designate a responsible officer for this purpose.

78. Where contributions are gathered towards infrastructure to be delivered by the local authority or other infrastructure providers, or payments for affordable housing to be provided off-site, mechanisms should also be in place to monitor the collection and drawing down of those funds and the provision of the infrastructure / housing. Planning obligations should include clear agreements as to how long funds may be retained, and authorities should consider proactively returning funds to developers if they are not used within the agreed period.

3.3.5 Enforcement of operations required by a planning obligation

79. Section 75(7) 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 the person or persons a minimum of 21 days notice of their intentions.

80. 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.

3.3.6 Unilateral obligations

81. Section 75 includes provision that a person may unilaterally enter into a planning obligation. This may be done by the owner of the land to which the obligation relates, or by another person, for example a developer who has an option to buy the land subject to grant of planning permission. The existence of a unilateral obligation would not preclude the planning authority seeking an obligation for matters which they consider should be the subject of a planning obligation and are not sufficiently addressed by the unilateral obligation (or any other obligation in place). A planning authority should not, however, seek a planning obligation that would simply duplicate the terms of a unilateral obligation. While there is no statutory requirement for a person preparing a unilateral obligation to do so, early engagement and discussion with the relevant planning authority is strongly encouraged.

82. As with any other planning obligation, the relevant instrument containing a unilateral obligation may be registered in the Land Register or recorded in the General Register of Sasines as appropriate, provided the owner of the land is party to it. Once registered the obligation is enforceable by the planning authority against future owners of the land, unless it specifically provides otherwise. 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.

3.4 Modification or Discharge of planning obligations

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

a) By agreement in writing between the person (or persons) against whom that obligation is enforceable and the planning authority; or

b) By the planning authority following an application for modification or discharge under section 75A(2), or the Scottish Ministers on appeal under section 75B.

3.4.1 Modification or discharge by agreement

84. There is no set procedure for negotiating the modification or discharge of a planning obligation by agreement. However, as noted in paragraph 98, any determination to modify or discharge a registered 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.

85. The right of appeal to Scottish Ministers under section 75B only arises in certain circumstances (set out below) following an application under section 75A(2). There is no right of appeal to Scottish Ministers where negotiations to modify or discharge a planning obligation by agreement (under section 75A(1)(a)) break down.

3.4.2 Application under s.75A(2)

86. 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(2). Regulation 3 specifies the items and information an applicant is to submit to the planning authority, including details of the land, the planning obligation, the applicant and other parties to the obligation, the changes the applicant wishes to be made and the grounds on which the changes are sought. The applicant must set out the exact terms of any modification sought. 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).

87. 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.

3.4.3 Notification of application to interested parties

88. 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.

89. On receipt of an application, it is then the responsibility of the planning authority to notify these interested parties that an application has been made (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.

90. 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.

3.4.4 Determination

91. 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 they are not the applicant).

92. 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.

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

94. 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.

95. There are no criteria set out in law for determining whether a planning obligation should be modified or discharged. The determination of such an application is not subject to the requirement in section 25 of the 1997 Act that it is to be determined in accordance with the development plan unless material considerations indicate otherwise. The development plan is, however, plainly relevant in determining whether there is a planning purpose for an obligation

96. Any application for modification or discharge should be considered against the policy tests set out in section 3.1.1 of this Circular. The decision-maker should determine the application in view of how the policy tests apply at the time of the decision, taking 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. Similarly, a discharge of an obligation will not be granted on the basis that the requirements of the obligation could have been secured by a less onerous means, such as a planning condition: it would not be possible to impose a planning condition retrospectively on the related permission.

97. There may be occasions when it is appropriate not to grant an application for modification or discharge of an obligation, even if the obligation as it stands does not meet this Circular’s five tests. This would be in circumstances in which it is evident an obligation could meet the five tests, but it is not possible to obtain the applicant’s consent for a modification that would meet the need for an obligation.

98. 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.

3.4.5 Return of contributions after modification or discharge

99. If a payment has been made as a contribution to the provision of infrastructure in accordance with a planning obligation, and the obligation is discharged (or modified to remove the requirement for that payment) at any time before the money is drawn down, then the money must be returned to the person who paid it. Once the money has been drawn down, it is too late for it to be returned merely because the obligation has been discharged or modified. It may not be appropriate to discharge the obligation, or remove the requirement to make a payment, after the money has been drawn down, since this may deprive the parties of any contractual mechanism provided in the obligation to resolve disputes about how the contribution was used.

3.4.6 Right of appeal to Scottish Ministers

100. Where an application under section 75A to modify or discharge a planning obligation is refused, there is a right of appeal to the Scottish Ministers in certain circumstances. The applicant (i.e. the person who applied for the obligation to be modified or discharged) may appeal if the planning authority decides that the obligation should not be modified or discharged, or if the planning authority fails to give notice of its decision within the 2 month period allowed. The appeal must be made to the Scottish Ministers within 3 months beginning either with the date of the planning authority's decision or the end of the 2 month period. Where the appeal is on the grounds that the planning authority has failed to give notice of its decision, it is assumed for the purpose of the appeal that the authority has determined that the planning obligation is to continue to have effect without modification.

101. The Town and Country Planning (Appeals) (Scotland) Regulations 2013 apply (see regulation 21 of those Regulations) to all appeals made in respect of planning obligations. Detailed guidance on appeals procedures, including how to appeal and what information is to be submitted by the appellant and the planning authority, is contained in Planning Circular 4/2013: Planning Appeals.

102. On an appeal under section 75B, the Scottish Ministers may determine that the planning obligation:

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

103. Where an appeal relates to more than one planning obligation, Scottish Ministers may make a separate determination in relation to each obligation. Scottish Ministers must obtain the consent of the applicant where, on an appeal under section 75B, they propose to either:

• discharge the planning obligation despite that not being sought in the section 75A application; or
• modify the planning obligation in a way that was not proposed in the section 75A application.

104. Similarly, where Scottish Ministers propose to modify the planning obligation in 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.

105. Most appeals will in practice be delegated to Reporters for determination. Appeals will normally be determined through written submissions. In some cases disputes about the relevant facts may necessitate the hearing of evidence. In such circumstances, the Reporter may make arrangements for an inquiry or hearing session to take place and the Reporter may decide that witnesses should be placed under oath.

106. Once the Scottish Ministers, or a Reporter exercising delegated powers, have decided an appeal, they cannot reconsider or correct it. A further appeal can be made to the Court of Session, under section 239 of the Act, within 6 weeks of the date of decision. The court has power to quash the appeal decision if it is outwith Ministers’ statutory powers or if the appellant has been substantially prejudiced by a procedural failure in the appeal.