Jim McKinnon has clarified the effect of new sections 75A and 75B of the Town and Country Planning (Scotland) Act 1997. To recap, these sections were introduced as part of the reforms in the 2006 Act but were only brought into effect on 1 February this year. They provide a system for formal application for modification or discharge of planning obligations. The only problem was that it wasn’t too clear whether the provisions applied to pre-February planning agreements, entered into under the old provisions.
Mr McKinnon has said in a letter to heads of planning that the new provisions do apply to pre-February agreements. He says the law does support his view (shame on those who expressed any doubts), though the Scottish Government is going to put the matter beyond doubt by making further regulations when Parliament reconvenes.
In determining an application for modification or discharge, planning authorities are required by government policy to consider the general tests for suitability of an obligation in a planning agreement, i.e. whether it is:
- serves a planning purpose,
- proportionate in scale and kind to the proposed development,
- relates to the proposed development either as a direct consequence of it or arising from its cumulative impact with other developments, and
- reasonable in all other respects.
Planning authorities should also take into account any change in circumstances. For certain contributions to infrastructure required from developers, it might be argued that the recession is such a change in circumstances. So, now is the time to look out old planning agreements and check if they still meet the policy tests.
There is no requirement in legislation for neighbour notification in respect of an application to modify or discharge a planning obligation or even for it to appear in the planning register. Therefore there is the potential for such applications to go under the radar – and not be known of until they’ve actually happened. This seems odd particularly when compared with the requirements for a section 42 application for modification of conditions. A case might be made that in fairness any third parties affected should be consulted or at least notified.
Finally, remain a bit cautious. Jim McKinnon expresses the Government position, but he’s not actually a court and so his interpretation is not definitive. The law is genuinely unclear, otherwise Jim wouldn’t have had to clarify it. We’ve yet to see the Scottish Government’s draft of its further legislation. We’ll have to wait and see how much further that clarifies the law.
On August 8, 2011