You can only apply for modification or discharge of a planning obligation if you are the owner of the land to which the obligation relates or the obligation is otherwise enforceable against you. But what if you were the landowner at the time you made the application, but had sold on the land by the time you came to appeal? This question was decided in a recent appeal against refusal of an application seeking to remove a restriction on HMO use of houses in the centre of Dundee. The applicant was entitled to have the appeal determined, even though the houses to which the obligation related had been sold on.
The appeal had flirted with a much bigger question:
Did the new arrangements for formal application for modification or discharge of planning obligations and related right of appeal apply to planning agreements made before 1 February 2011 (when the new provisions came into effect)? And could the Government competently apply the new provisions to old agreements by a saving and transitional measure?
The Council had raised this question in its response to the appeal, but did not go into the reasons why the new arrangements are not to be applied to agreements made before 1 February 2011. Since the appeal was unsuccessful for other reasons, the reporter had no need to determine the point. We’ll see whether it returns in a later case.
On July 23, 2012