Planning & Environment

Last week the Scottish Government ran a workshop series on delivering planning reform. At last Monday’s session, Jim Mackinnon (director of the Scottish Government’s Built Environment Directorate) and his senior managers discussed culture change to improve delivery. No revision of the primary legislation is on the cards this side of an election, and the Government’s planners were not looking at revisions to secondary legislation at the workshop.

In our break-out session on development management, there was discussion of the increasing use of section 75 agreements and the concern at the delay conclusion of an agreement causes. A suggestion was made that planning authorities should review their outstanding requirements for section 75 agreement and whether they could be replaced by a Grampian condition.

Apparently the consultation on the new section 75 planning obligations is coming shortly. The new section 75 replaces agreements with obligations, which a developer may enter into unilaterally. The new provisions allow formal application to the planning authority for modification or discharge of planning obligations, with the option of appeal to a reporter. The word was that this will apply to agreements made before the new provisions come into effect. If that is actually the case, several thoughts occur:

  1. The new arrangements would appear to go much further than the equivalent provisions in England. There you can only apply for modification or discharge of the equivalent section 106 agreements five years after it is entered into, and the planning authority is only obliged to grant modification or discharge to the extent that the agreement no longer serves a useful purpose. No such criteria apply (at least in primary legislation) in Scotland. In fact there are no criteria for the decision on modification or discharge in the new provisions. Perhaps they’ll be in policy.
  2. It is questionable whether the Scottish Government, without specific authority in primary legislation, can apply the new provisions, which  relate to the newly created “obligations” to allow modification or discharge of “agreements” made under the old provisions. Agreements are different legal creatures from obligations.
  3. Leaving point 2 aside, if landowners can apply for modification or discharge of existing s 75 agreements, it would be well worth their while reviewing all agreements their land is subject to. Difficult to know what to look for, though, without any criteria for modification or discharge being available.
Planning & Environment