Obtaining planning permission is rarely the end of the planning process. In many cases, planning permission can’t be issued until a section 75 agreement has been negotiated, signed and registered.
Understanding how these agreements work, and the impact they can have on programme and delivery, is therefore an important part of bringing forward development.
What is a section 75 agreement?
A section 75 agreement is a legally binding planning obligation entered into under section 75 of the Town and Country Planning (Scotland) Act 1997. They are broadly equivalent to Section 106 agreements in England and Wales.
In simple terms, a section 75 agreement is an agreement between the planning authority and parties with an interest in the land which regulates the development or use of that land. Unlike planning conditions, section 75 obligations are registered against the title and bind future owners of the site.
Section 75 agreements are commonly used where a planning authority considers that a development is acceptable in principle, but additional obligations are required to make it acceptable in planning terms. This may include obligations requiring specified operations or activities to be carried out, requiring the land to be used in a particular way or securing the payment of financial contributions.
When is a section 75 agreement required?
Section 75 agreements should not be used simply because a planning authority wishes to secure a benefit from a development. Scottish Government Planning Circular 4/2025 explains that they should only be sought where they satisfy the policy tests set out in National Planning Framework 4 and:
- are necessary to make the development acceptable in planning terms;
- serve a planning purpose;
- relate to the impacts and scale of the proposed development; and
- are reasonable in all other respects.
Section 75 agreements are typically used when planning conditions alone are not sufficient to address the impacts of a development.
What types of obligations are covered?
The obligations contained in a section 75 agreement will vary depending on the nature of the development, but common examples include:
- payment of financial contributions;
- delivery of affordable housing;
- construction of roads, junction improvements and transport infrastructure;
- education contributions;
- provision of open space and community facilities; and
- habitat creation, biodiversity and environmental mitigation measures.
Section 75 agreements also often contain detailed phasing provisions, trigger mechanisms and reporting requirements that continue throughout the development programme.
Who must be a party to the agreement?
One of the most common causes of delay is identifying who needs to sign the agreement and ensuring that all relevant parties have instructed solicitors.
As a starting point, all owners of the land affected by the agreement must be parties. Where the developer is not the current landowner (for example, because it holds an option or missives to purchase), it will often also be a party.
Depending on the circumstances, heritable creditors (lenders) and other parties with a relevant interest in the land, such as landlord and tenants, may also have to sign the agreement as consenters.
On larger sites, ownership structures can be complicated, particularly where there are multiple landowners, option agreements, or funding arrangements in place. Identifying all relevant parties early can help avoid delays later in the process.
Where there are multiple landowners, the obligations in a section 75 agreement will be joint and several which means that the agreement can be enforced against all or any one of them, unless the agreement specifically states otherwise. Similarly, landowners may continue to be liable for obligations after they have sold their interest in the site unless the agreement specifically states otherwise.
What is the process and can it affect delivery programmes?
The negotiation process will vary depending on the complexity of the development, but typically involves:
- the planning authority identifying the obligations required to support the development;
- solicitors negotiating the draft agreement;
- agreement of the final terms;
- execution by all parties;
- registration against the relevant title(s); and
- grant of planning permission, where the permission is contingent on the agreement being concluded.
While this may sound straightforward, section 75 agreements can have a significant impact on project programmes.
Negotiations often continue long after a minded to grant planning decision has been issued. Complex ownership structures, lender consents, title issues and disagreement over contribution levels, trigger points or drafting can all delay completion.
Developers should therefore factor section 75 agreement negotiations into project timetables at an early stage and engage with planning authorities before an application is determined wherever possible.
How can a section 75 agreement be modified or discharged?
A section 75 agreement can be modified or discharged either by agreement with the planning authority or by making a formal application to the planning authority under section 75A of the Act, which can be appealed to the Scottish Ministers if refused.
Who monitors compliance?
Responsibility for monitoring compliance generally sits with the planning authority, but landowners and developers remain responsible for ensuring that the obligations are met.
Most authorities maintain systems for monitoring obligations and tracking trigger events, although approaches vary between councils.
Developers should also maintain their own internal monitoring systems, particularly on larger sites where different obligations may be triggered at different stages of construction or occupation. Failure to comply with an obligation can result in development having to cease, potentially delay later phases of development. Interest will be incurred on late payments.
Tips for avoiding delays
- Start early. The biggest mistake is often treating the section 75 process as an afterthought. Identifying likely obligations and the parties required to sign before a planning application is determined can save significant time.
- Ensure that all relevant parties, including landowners, tenants and lenders, are aware of the requirement for a section 75 agreement and have instructed solicitors. Where the land is subject to a security, the lender should be notified as soon as possible.
- Ensure the relevant title information is clear and up to date.
- Review the draft agreement carefully. Planning authorities frequently use standard template agreements which may contain obligations and monitoring provisions that are not appropriate for every development.
- Review where liability rests for compliance with the obligations in the agreement.
- Review trigger points carefully. Payment obligations linked to commencement, completion or occupation can have very different commercial implications. Trigger points should align with project cashflow and delivery assumptions.
For more information, please get in touch with your usual Brodies contact or one of our planning, environment, and climate lawyers.
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Solicitor
