T&CP(S) Act 1997 | Circular 12/1996 | T&CPAct 1990 (as amended) | Circular 1/97 |
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"A planning authority may enter into an agreement with any person interested in land in their district
(in so far as the interest of that person enables him to bind the land)
for the purpose of restricting or regulating the development or use of the land,
either permanently or during such period as may be prescribed by the agreement"
75(1) | General Policy
- Enforcability provisions give advantages over other forms which are personal contracts
- should only be sought to make a proposal acceptable in land use terms
- must not be used to obtain benefits which are "unrelated in nature, scale or kind to the development proposed"
- should only be required where it would be wrong to grant pp without them.
- Use of conditions favoured as an alternative
- Terms of Agreements are material considerations but the weight afforded them is a matter for the decision-maker.
- LPA cannot oblige itself to grant pp within the terms of an agreement eg. circumstances may change between original resolution and conclusion. | "Any person interested in land
may by agreement or otherwise
enter into an obligation
a) restricting the development or other use of land in any specific way
b) requiring specified operations or activities to be carried out….
c) Requiring the land to be used in any specified way
d) Requiring a sum or sums to be paid on a specified date or dates" 106(1) | "Planning obligations" include both agreements and unilateral undertakings" restricting the use or development of land.
- should only be sought to make a proposal acceptable in land use terms
- must not be used to obtain benefits which are "unrelated in nature, scale or kind to the development proposed"
- should only be required where it would be wrong to grant pp without them.
Can be positive or negative in their requirements
Should not be sought where the connection with the development does not exist or is too remote
"The offer of an obligation which goes beyond the guidance set out in the Annex to the Circular will not necessarily be unlawful. But it should be given very little weight in the determination of the application" Extraneous benefits should not be allows to affect the decision.
Should not include the transfer of interests in land (should be done by negatively worded conditions) |
"….may contain such incidental or consequential provisions including financial ones) as appear ….to be necessary or expedient…."
75(2) | General principles
- Planning purpose (ie related to the use or development of land)
- Relationship to the development proposed
- Scale and kind (ie must be proportionate to the development proposed )
- Reasonable | A planning obligation may
a) be unconditional or conditional
b) impose restrictions or requirements either indefinitely or for specified periods/periods
c) require money payments to be made periodically or indefinitely 106(2) | Broad Principles
The following tests must be met :
- necessary?
- Relevant to planning?
- Directly related to the proposed development?
- Scale and kind?
- Reasonable? |
"…agreement …if recorded in Register of Sasines or registered in Land Register of Scotland… is enforceable at insistence of PA against persons deriving title from the person with whom the agreement was entered into.."
75(3) | Development Planning
- Policies should be as precise as possible
- Early identification | A planning obligation is enforceable by PA against the person entering into the obligation and against any person deriving title from that person
106(3) | Obligations run with the land and can be enforced against the original covenanter or anyone subsequently obtaining an interest in the land from him. |
Not enforceable against a third party who has is good faith acquired right to the land prior to the agreement being registered/recorded or any person deriving title from this third party
75(4) | 1. Procedural Issues
- Is an agreement necessary?
- Early identification and negotiation
- Is recording/registration essential?
- Internal LPA procedures should be monitored to minimise delay | Obligation instrument may provide that a person shall not be bound by an obligation when they have no longer any interest in the land
106(4) | Unilateral Obligations
Employed usually at appeal to remove a negotiation logjam. |
Sec 75 should not be seen as fettering other powers of the authority in relation to the provisions of the development plan 75(5) | | Enforceable by injunction 106(5) | |
| | If there is a breach the authority may enter the land to carry out the required works and recover the expenses reasonably incurred ; subject to 21 days notice; those obstructing is committing an offence liable to prosecution and fine
106(6,7,8) | |
| | Planning obligation may not be entered into except by an instrument executed by a deed which :
- states that it is a planning obligation
- identifies the land
- identifies the person
- identifies the authority
106(9)
Copy given to the authority (10) | |
| | A planning obligation shall be a local land charge relating to sums payable as above
106(11,12) | |
| | A planning obligation may not be modified or discharged except by agreement between the parties
106A (1) | |
| | After a relevant period (as specified or max. 5 years) the second party can apply to have the obligation modified or discharged 106A(2,3,4) | |
| | No new obligations possible on other parties
106A (5) | |
| | Authority can determine to keep as is, agree to modify or discharge the obligation
106(6) | |
| | Authority's notice of determination as prescribed
106A(7) | |
| | Modified obligations enforceable 106A(8) | |
| | Procedural Regulations 106A(9) | |
| | Provisions for appeal against authorities in default of modifications applications provisions
106B(1-7) | |