Recently, the Scottish Government issued a new policy document: “Planning Circular 1/2010: Planning Agreements“, which all planning authorities should take into account when putting in place any Planning Agreement (also commonly called “section 75 agreements”) now. Among other things, the Circular sets out tests that must ALL be satisfied to justify the use of a Planning Agreement to impose planning obligations:
- Necessity: is the obligation necessary? E.g. a one-off payment does not need to be imposed on successors in title.
- Planning purpose: does the obligation serve a planning purpose? E.g. infrastructure requirements should be identified, where possible, in strategic / local development plans or in supplementary planning guidance approved by the planning authority.
- Relationship to proposed development: is the obligation related to the proposed development? E.g. a development may create a direct need for particular facilities.
- Scale and kind: is the obligation proportionate to the proposed development? E.g. obligations should not be used to resolve deficiencies in infrastructure which are not necessary for the particular development.
- Reasonableness: is the obligation reasonable? In answering this question, the whole circumstances of the proposed development need to be taken into account.
These tests are important, as they offer clear guidance as to how a Planning Agreement should be framed and, crucially, what they should not seek to impose. If permission is not granted because a Planning Agreement is not concluded, then an appeal should consider whether these tests would have been met, in particular, whether or not the planning authority has highlighted potential development constraints (that might require the imposition of a Planning Agreement) in relevant development policies.
The Circular also comments on the process of negotiation of Planning Agreements, starting with heads of terms. Planning authorities are expected to outline the principal elements of the agreement they are seeking as soon as possible, and, at the latest, at the date of any decision to grant permission subject to concluding an agreement.
If you would like to discuss how the new circular may affect an application for planning permission or a Planning Agreement you are negotiating, please contact Marion Davis, in bto’s Planning Team.