Planning Obligations – Creating Order Out of Chaos
Source: Scottish Chartered Surveyor, Summer 2010
High land or development values are powerful enabling factors – they make it possible to fund substantial infrastructure through developer contributions. However, as the economic downturn has taken hold, not only have land values been insufficient to fund infrastructure contributions, Councils’ receipts from land sales have also been cut and so they are increasingly dependent on such deals. Clearly there needs to be a balance that ensures developers contribute to facilities directly related to a development, whilst not jeopardising sustain¬able economic growth.
Planning agreements can often be messy and potentially inequitable and include protracted negotiation. Unlike the case in England, once completed, there is no statutory right to modify or discharge the agreement’s terms. It is worth briefly considering how the 2006 Act will overhaul and flesh out the current planning agreement regime under s75.
“Planning Agreements” will be replaced by “Planning Obligations”. Planning obligations will continue to restrict or regulate the development or use of land either permanently or during a specified period. Unilateral undertakings will also be introduced – allowing developers and landowners to enter into an obligation without the agreement of the planning authority, to help overcome difficulties where negotiations become protracted.
Most importantly, for realising land or development value, the 2006 Act will allow developers and landowners to apply to planning authorities to have the terms of an obligation modified or discharged. Whilst Councils have economic recovery plans encouraging modifications, some planning officers and committees are apparently refusing to modify agreements. The 2006 Act will negate this and help alleviate pressing practical issues arising out of the impact of the ongoing economic position. For instance, where developers seek to either re-negotiate their packages or delay when payment should be made and the Council refuses to do so, there will be a right of appeal to the Scottish Ministers. The detail of the mechanics associated with this appeal process are contained in the Scottish Government’s consultation on Planning Obligations and Good Neighbour Agreements Regulations 2010 ending on 30 July 2010.
The date for the amendment of s75 has yet to be announced. We must also await the results of the consultation, publication of the final regulations, and a new Circular. However, there are rumours that the Scottish Government is currently considering abolishing the entire s75 regime. It is unclear what might replace it, other than chaos.
AUTHOR: SARAH BAILLIE
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