On Tuesday 1 February 2011, the final pieces in the most recent reform of planning law in Scotland, introduced by the Planning etc. (Scotland) Act 2006, fell into place. As a result of these reforms, developers now enter into planning obligations with Planning Authorities, and have a prescribed regime for modifying and discharging the agreements entered into.
The new rules
The new section 75A of the Town and Country Planning (Scotland) Act 1997 introduces a formal application procedure by which modifications and discharges of planning obligations must be effected. The person against whom the planning obligation is enforceable may apply to the Planning Authority to have that obligation modified or discharged. This marks a key change to the planning system in Scotland as, prior to these rules, modifications and discharges were carried out by simple agreement between the parties.
The details which must be included in the application are prescribed by the Town and Country Planning (Modification and Discharge of Planning Obligations) (Scotland) Regulations 2010. Most of the information required in the application is fairly innocuous (address of the land, details of the parties and so on), but some has the potential to place quite an administrative burden on both the Planning Authority and the applicant. For example, one of the requirements is to provide the names of "interested parties" in respect of the modification or discharge (to the extent known to the applicant), discussed further below.
Once the Planning Authority has determined the application, the formal determination of the Planning Authority is registered against the land. It is at this point that the modification or discharge becomes effective.
There are three key impacts which should be noted as a result of these new rules. The first impact, which will be felt acutely by both Planning Authorities and applicants, is that all modifications or discharges of planning obligations must now be made by a formal application to the Planning Authority. The Scottish Government considers that this includes those planning agreements entered into prior to 1 February 2011. Consequently, the modification and variation clauses commonly seen in planning agreements prior to 1 February would be redundant because the legislative procedure will take precedence.
The second impact places a particular burden on the applicant because, as a result of section 75A(4) of the 1997 Act, applications can only have an "all or nothing" outcome. That is to say that the Planning Authority has discretion only to decide that the planning obligation:
- shall continue to have effect without the modification(s);
- is discharged if so applied for; or
- is to have effect subject to the modification(s) specified in the application.
The Planning Authority has no discretion to permit some modifications but not others contained in the application. Further, should the applicant not include in the application a modification which is sought, however small, the Planning Authority cannot choose to allow that additional modification as part of the application before them – a separate application must be made.
The third impact is one which, in larger housing developments in particular, may prove to be an administrative burden on both the Planning Authority and the applicant. The 2010 Regulations state that the applicant must, when making the application to discharge or modify planning obligations, provide a statement setting out the names of "interested parties" to the planning obligation. An "interested party" is defined by the 2010 Regulations as being: "…the owner of the land to which the planning obligation in respect of which the application is made relates…".
In the absence of judicial or Scottish Government guidance, both Planning Authorities and applicants may need to be cautious as to the meaning of "interested party". On one reading of the 2010 Regulations, for example, an interested party may be each individual owner of a house sold on a larger development site over which a planning obligation sits. Clearly this has the potential to run into tens or perhaps hundreds of interested parties. One hopes that a pragmatic approach can and will be adopted by Planning Authorities in respect of this requirement.
It is clear that these new procedures place a large amount of administrative burden on both Planning Authorities and applicants. The requirement to ensure that the application to modify or discharge is correct at the first time of asking seems incredibly inflexible and may prove to be particularly onerous.
Additionally, the requirement to provide a statement of the interested parties for notification purposes also has the potential to cause problems. Given that these provisions have only been in force for a short period of time, there are not yet any hard and fast rules for interpretation of the new regulations.
What is clear, however, is that these new rules seem to have added to the front-loading of the planning system in Scotland, where early discussions between developers/applicants and Planning Authorities will be required in order to ensure that the system runs as smoothly as possible.