Regulations are set to come into force on 18 November which will bring into force those sections of the Planning (Scotland) Act 2019 which deal with planning obligations. This will involve amendments to s75 and s75A of the Town and Country Planning (Scotland) Act 1997, which govern the creation, modification and discharge of planning obligations.
A relatively subtle, albeit significant change
The 2019 Act didn't effect wholesale change to the existing planning obligation regime in Scotland – the change to s75 is a relatively subtle, albeit significant change. At present, s75 allows that a person may, in respect of land in the district of a planning authority, enter into an obligation restricting or regulating the development or use of the land ("a planning obligation") and then goes on to clarify that such a planning obligation may require the payment of a specified amount or an amount determined in accordance with the relevant instrument. Once the amended version of s75 comes into force on 18 November, a planning obligation will be an obligation which restricts or regulates the development of use or land, or requires payment of a specified amount or periodic payments. This might seem to be a minor distinction, but in effect it will decouple payment obligations from an obligation to restrict or regulate development, meaning that a financial payment could be required without any wider provisions in the agreement restricting and regulating the development. These provisions were likely brought in to address points which arose in the Elsick case, which found that the link between the impacts of the development in question were too remote from the contributions sought to be relevant to the development and form the basis of a planning obligation.
Further flexibility and efficiency
The changes to s75A of the 1997 Act are intended to lend further flexibility and efficiency to the process for modifying or discharging a planning obligation. In its current form the Act requires a formal application to be made to the planning authority in terms of s75A and, like other planning applications, applications for modification or discharge of a planning obligation can take a number of weeks or months to be determined and require prescribed information to be provided. It may be that s75A applications remain the norm where substantive changes to a planning obligation are sought, but the new s75A at least provides scope for discharge of an obligation by agreement in writing between the planning authority and a person against whom the obligation is enforceable without a formal s75A application. This option will be of particular use where the terms of the planning obligation are now obsolete, most obviously where its terms have already have already been fully implemented or the planning permission to which the planning obligation related has expired without being implemented. Furthermore, at the moment, getting the wording of an application to modify an obligation correct is critical because the planning authority can only approve or refuse what has been applied for, it has no power to substitute its own wording or grant a s75A application in part. Going forward, the planning authority will be entitled to decide that a planning obligation should continue to have effect subject to modifications which the planning authority itself can draw up (with the applicant's approval).
Speed up the process of modifying or discharging an obligation
We hope that these changes to s75A will speed up the process of modifying or discharging an obligation and will allow planning authorities to take a pragmatic approach to modifying such agreements. Planning obligations remain in force unless and until formally discharged, even where there has been a change to the planning authority's policy in the interim or the rationale for enforcing the obligation no longer exists. For example, it used to be very common for planning obligations to be used to restrict the sale or occupancy of new dwellinghouses, particularly in rural locations where housing was justified based on a need for workers, often agricultural workers. Recent years have seen a move away from this policy position to what effectively amounts to a presumption against restrictions on occupancy and ownership of dwellinghouses, but such restrictions still burden many titles even though many planning authorities are now prepared to discharge them. It is expected that s75A will make it quicker and easier to have these, and other planning obligations which authorities no longer have an interest in enforcing, discharged. We have had recent success in having such a restriction on sale and occupancy removed from the title of a house within the grounds of a hotel, allowing the owners to lawfully sell the property to a person unconnected to the hotel business for the first time in decades.