As it was promised, so it has come to pass for old section 75 planning agreements. The Scottish Government has laid before Parliament an order intended to clarify that the new provisions on section 75 planning obligations apply to old-style planning agreements. The only significant exception to this is that old-style agreements will not be enforceable against former owners of land to which an agreement applies, while new-style obligations will be so enforceable unless there is specific provision otherwise in the obligation.
So, what does this mean for existing agreements? The following appears to be the case:
- You can’t make a new agreement to revoke or modify an old agreement. The only means provided by law for modifying or discharging planning obligations is by formal application to the planning authority, with notice to certain interested parties, and a formal reasoned decision notice. The new provisions will also supersede any contractual provisions for discharge within an old-style agreement.
- You can apply to modify an agreement even after the obligations in it have been performed. There is no time limit provided by law. Might a developer be able to amend an agreement introducing a mechanism for repayment of an unspent education contribution? If so, then can that be done for an education contribution paid six or ten or fifteen years ago?
- You can appeal to the Scottish Ministers against the refusal of your application.
Since the new provisions have not yet been greatly tested, there are still uncertainties about their interpretation. But since there is no fee for an application, and no limit on the number of applications you may make in relation to a single agreement, developers have little to lose from making applications to test the new provisions.
We understand that some planning authorities are not pleased. They regard this as an attempt by the Scottish Government to interfere with bargains they have made in the past, when no party had any inkling such new provisions would come along, and doubt whether the new order is lawful. Tactically, until the law is clearer, such planning authorities might be better avoided for the present by developers and landowners seeking to explore the new opportunities.
There is at least one point where the planning authorities gain a new power, which might be of concern to developers:
- Where an agreement provides for certain works to be done by a developer, the Council will have power to enter land, carry out the works and recover costs from the developer, even if there was no such provision in the original agreement.
The order is to come into force on 14 November. The Scottish Government claims it is a clarification of the law, rather than a change in the law, so it can be assumed that the Government considers the statutory instrument to represent the law as it stands.
On October 4, 2011