Planning Obligations and Good Neighbour Agreements: draft guidance

4: Good Neighbour Agreements (GNAs)

4.1 General principles

107. The provisions in the primary legislation and regulations in respect of GNAs broadly follow a similar approach to those set out for planning obligations, although there are a number of significant differences.

4.2 Parties to a GNA

108. A GNA is entered into between a person, for example a landowner or developer, and a community body (as opposed to a planning authority). A community body is defined (section 75D of the Act) as being either:

• the community council for the area in which the land in question (or any part of that land) is situated; or,
• a body or trust whose members or trustees have a substantial connection to the land in question and whose object or function is to preserve or enhance the amenity of the local area where the land is situated.

109. In the case of a body or trust, other than a community council, the body must be recognised (and notified) by the planning authority as meeting the criteria set out in the second bullet point above.

110. There is no provision in the legislation for any person to propose or enter into a unilateral GNA.

4.3 Scope of a GNA

111. Section 75D(1) sets out that a GNA may govern 'operations or activities relating to the development or use of land, either permanently or during such period as may be specified in the agreement'. A GNA may make provision, for example, that information is provided to the community body regarding the nature and progress of development on a site. It should be stressed, however, that a GNA may not require any payment of monies.

112. As with a planning obligation, a GNA (to which an owner of the land is a party) may be registered in the Land Register of Scotland or the General Register of Sasines, making it enforceable against future owners or occupiers of the land.

113. A GNA should not be viewed as an alternative to a planning obligation. A planning authority should not seek to make it a requirement for the grant of planning permission that a GNA be put in place.

4.4 Modification or discharge of a GNA

114. Section 75E provides that a GNA may be modified or discharged by agreement between the community body and the person against whom it is enforceable. If they are unable to reach agreement then either may apply to the planning authority for determination. The procedures for submission of an application for modification or discharge of a GNA, subsequent determination of the application by the planning authority, and appeal to Scottish Ministers, are broadly similar to those for planning obligations. They are set out in the Town and Country Planning (Modification and Discharge of Good Neighbour Agreement) (Scotland) Regulations 2010.

115. Regulation 3(2)(i) of the 2010 regulations requires that any application is accompanied by evidence that attempts have been made to negotiate the amendment of the GNA. Failure to supply this evidence will mean that the application cannot be validated.

116. The planning authority may determine 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. The legislation does not permit the planning authority to determine that the GNA should be subject to any modification (or modifications), other than that which was set out in the application.

4.5 Right of appeal to Scottish Ministers

117. Either the community body or the person against whom the GNA is enforceable may appeal the planning authority’s decision (or failure to reach a decision within 2 months) to the Scottish Ministers, under section 75F. It should be noted that the person or body who appeals need not be the person or body who originally sought the modification or discharge of the GNA. An appeal may therefore be made against a planning authority decision to allow an application to modify or discharge a GNA. 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.

118. The procedure for an appeal is the same as for a planning obligation, as set out in the Town and Country Planning (Appeals) (Scotland) Regulations 2013 (see regulation 22 of those Regulations). 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.

119. As with the planning authority decision, the legislation does not permit Scottish Ministers to determine that the GNA should be subject to any modification (or modifications), other than that which was set out in the application.