The Planning (Scotland) Act ("the 2019 Act") became law in July 2019 and, like the Planning etc. (Scotland) Act 2006 ("the 2006 Act") before it, amends the previously consolidated Scottish planning legislation contained in the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act").

Details of how the 2019 Act's provisions will work in practice are being released in stages through secondary legislation and additional guidance.

As part of the roll-out, regulations have been laid in the Scottish Parliament to bring into effect procedural changes for the modification and discharge of planning obligations, along with clarity in terms of what planning obligations may comprise.  The regulations come into force on 18 November.

Planning Obligations: The current position

Planning obligations are presently covered under sections 75 and 75A of the 1997 Act as amended by the 2006 Act.

Section 75

Commonly by virtue of section 75(3) of the 1997 Act, as amended by the 2006 Act, a planning obligation can restrict or regulate the development or use of land by way of financial obligation, payment of which is enforceable as a statutory contractual burden on the land.

The Supreme Court ruled in the Elsick case in 2017 that the imposition of a financial obligation towards infrastructure unconnected to the development of a site was unlawful and outwith the scope of section 75.  Section 75 contains an implicit limitation that the restriction must serve a purpose related to the particular development or site.

Section 75A

Under section 75A of the 1997 Act, as amended by the 2006 Act, the only way to modify or discharge a planning obligation is by formal application to the planning authority to do so.  This is a formal process governed by regulations.  One of the limitations of this process is that the planning authority cannot instigate such applications.

The position from 18 November

Section 34 of the 2019 Act

The implicit limitation highlighted in the Elsick case is removed by section 34 of the 2019 Act, which separates the restrictions on development and land use from any financial contribution that may also be sought.   A financial contribution could, therefore, be requested without any restriction on the particular development and/or land use, and vice versa.   Other legal and policy limitations on the use of planning obligations do, however, still apply.

Section 37 of the 2019 Act

Section 37 introduces more flexibility for modifications to and discharges of planning obligations.

It allows a planning obligation to be modified or discharged by agreement in writing between the planning authority and those against whom it is enforceable as an alternative to the formal application process.  Such agreements were the pre-2006 Act method in practice of varying and discharging section 75 planning obligations and, in fact, their 's50' predecessors.  This gives the planning authority the opportunity to initiate modification and discharge as well as both parties the flexibility to incorporate discharge or modification of an existing planning obligation in a current obligation being negotiated in respect of the same land.

Section 37 also gives planning authorities more scope in terms of how they determine formal applications that are received for discharge and/or modification of obligations.  For example, section 37 will allow the planning authorities to suggest modifications to an application, when the only option available to them previously was to approve or refuse such applications.  Subject to the consent of the applicant, and those against whom the obligation is enforceable, planning authorities can agree an alternative to simple approval or refusal of what is applied for.

In short, sections 34 and 37 bring clarity and flexibility to the business of planning obligations.