Scope of Planning Agreements and Obligations
Local Authorities
City of Edinburgh Council: Welcome a review of scope of agreements provided it is linked to discussions about infrastructure needs. Further details of the use of unilateral obligations relative to suggestions by planning authorities of suggested conditions would be required.
Dundee City Council: The Council recognises that the valid and useful role of planning agreements in the planning system can be misunderstood and lead to misplaced accusations of impropriety. The commitment to section 75 of the Act is welcomed as is the intent to issue further guidance. This measure is welcomed in that it will bring Scottish legislation into line with that of England and Wales to allow a developer/applicant to offer a benefit to a planning authority in order to resolve a stalemate in negotiations which mostly arise at appeal inquiries or hearings.
Fife Council: This improvement will assist in potentially speeding up the work on Section 75 and will make the process more transparent to members of the public. The submission of Draft Section 75 Agreements in Appeal cases is particularly welcomed as it is very often the case that reporters do not enter into Section 75 Agreements in the same way as the planning authority would in considering the planning application. More clarity/certainty required on negotiations relating to planning and community gain to ensure levels of national and local consistency
Glasgow City Council: The Council previously supported the proposal to make more information publicly available about planning agreements and to ensure that details of these are entered into the planning register. Guidance is required from the SE on the scope for local authorities to explore developer contributions to pay for, e.g. the provision of infrastructure. The principle of making information on agreements more publicly available is supported.
Highland Council: Unilateral agreements offered by applicants could give rise to problems. If a Local Authority considers the terms of the agreement unacceptable then a planning refusal could follow. A better way forward would be to retain the present voluntary Section 75 agreements but to give greater guidance on how they should be framed, what they should cover and how the agreement can be discharged.
Moray Council: Subject to further guidance, these proposals can be supported in principle. The submission of unilateral obligations must conform to guidance to ensure they are transparent and will remove an authority's ability to decline to enter into an agreement. The requirement to include the agreement details on the register may not be a significant burden but will require more robust internal arrangements and procedures particularly if the agreement includes a large number of items that are subject to different monitoring regimes.
South Ayrshire Council: It is proposed that there be a requirement for authorities to place planning agreements on a public register. This may pose some practical difficulties, particularly if the agreement contains information that may be commercially sensitive for the applicant/developer.
Non Departmental Public Bodies
Defence Estates: Defence Estates welcomes proposals to improve efficiency in the planning process, including the proposed rationalisation of the framework for governing agreements and allowing applicants to submit unilateral obligations
Sportscotland: We welcome the proposal to make the system of planning agreements more transparent and monitor the implementation of such agreements. Our experience of agreements involving the provision of replacement sports facilities when playing fields are developed demonstrates that there is widespread public suspicion about the use of legal agreements. We would also welcome the introduction of a mechanism to deal with situations where the local authority is the developer or is responsible for delivering the associated infrastructure and a section 75 agreement cannot be used. We have in the past entered into agreements with local authorities under Section 69 of the Local Government (Scotland) Act but this is neither satisfactory nor transparent.
Scottish Water: As the intention of such agreements is to enhance the planning benefits of development, Scottish Water seeks further clarity over our statutory responsibilities in relation to the development plans and how planning agreements will affect this. Although we operate in the public interest as a statutory undertaker, we are also required by planning authorities from time to time to enter into planning agreements and obligations above and beyond this public interest. We would welcome greater clarity on the extent to which planning agreements and obligations should apply to Scottish Water so that we could then seek to redress any necessary funding through economic regulation. We would also welcome greater clarity on the use of planning agreements and obligations on developers for contributions to overcoming water and wastewater capacity problems on new development. This is important to allow an understanding of expectations that may alter project timescales and costs.
The Theatres Trust: We support these provisions which are important in assisting theatre owners to become more self-reliant and to obtain better buildings by using the planning system. We are concerned that theatre buildings do not benefit appropriately from planning agreements and obligations, and this is an increasingly necessary source of funding.
Other Public Bodies
Central Scotland Forest Trust:CSFT supports the improvement of the framework governing these agreements, including re-stating their permitted scope. We propose that the potential for 'green' works - such as tree planting - as part of planning agreements should be given prominence in the improved framework of governance. This should help planning agreements to be used more often to secure quality greenspace as part of new built development. As part of this increased prominence, we would include enhanced emphasis in the framework for 'off-site' compensatory works - e.g. greenspace and woodland planting within walking distance of a development, if this could not be accommodated in the scheme, but could be accommodated in the local vicinity.
NHS Lothian: Healthcare needs should be considered alongside other essential services such as education, when assessing the conditions attached to proposed developments. The inclusion of health facilities within the areas for which "planning gain " is sought where there is an identified impact on local services is vital if the health infrastructure is to be developed to support the needs of communities in an integrated way.
The Development Industry
Glasgow Harbour Ltd ( GHL): We consider that significant clarification and explanation will be required as to how the framework governing planning agreements will be implemented.
Grosvenor Investments: The level of contributions needs to be more consistent with contributions focusing on legitimate and positive proposals. We feel that there should also be deadlines for future contributions so that if projects don't materialise within the timescale set, contributions could be reimbursed. Extra, and inconsistent, burdens can make marginal schemes unviable and hinder regeneration. Therefore, there should be a clear stated schedule of contributions, and councils should seek legal advice when entering into these. This does raise the more general point of whether key infrastructure developments should be funded by central government, rather than put in place in a piecemeal fashion by developers.
Homes for Scotland: Overall the White Paper does not address adequately how planning permissions can be delivered more quickly. One source of significant delay is Section 75 agreements. Homes for Scotland view is that soundly worded enforceable planning conditions should be the norm, and section 75 agreements only required in exceptional circumstances, in line with the Executive's advice. Where Section 75 agreements are required, on average they add a further 12 months to the approval process but in other cases significantly longer following the issue of the" minded to grant" letter. The White Paper does not address these concerns and neither does it draw on previous research undertaken by the Scottish Executive in 2004. Other than Aberdeenshire, few authorities have the skills to deliver agreements timeously. Homes for Scotland's view is that the planning permission should at a minimum set out the Heads of Agreement where a S75 agreement is required. We note that appendix 6 states that the Heads of Agreement should be public and Homes for Scotland's view is that the planning consent is the preferred vehicle for achieving this. There could also be increased scope for model agreements and we consider that the Scottish Executive should advise further on their scope. The provision of infrastructure and planning gains by developers through Section 75 agreements may in due course have to be considered in a UK context should a land tax, i.e. a planning gain supplement, be introduced as recommended in the Barker Review. Inevitably, as a tax it will relate not only to English experience but have wider UK application in order to achieve a level playing field. We are of the view that in relation to Section 75 Agreements, there is a need for the primary legislation to be modified to set out more clearly the circumstances when Section 75 Agreements would be appropriate and which in turn should also address the issue of delay. If the Planning Bill is not considered to be appropriate, we look to the early publication of new guidance which draws on the previous research. In the context of planning gain, the White Paper fails to take account of the costs of Stamp Duty Land Tax which is an additional cost on developers. This needs urgent review where land or contributions in kind, e.g. offset payments as a percentage of land costs, are used in lieu of actual provision to fulfill affordable housing policies. The Barker Report also contends that a Community Infrastructure Fund should be set up and which has been accepted by the Government in England. If, along with this, Barker's other proposals are accepted, it points to a major difference between the situation in England and Scotland and the lack of a level playing field for Scotland. The Barker Report recognises that there are limits to what it is sensible to require developers to provide and that is particularly true in Scotland where there is not the help of an enabling body similar to English Partnerships, there is no Community Infrastructure Fund to provide gap funding and developers are increasingly expected to subsidise Scottish Water. There is a need to create a code of practice or other similar document for public utilities (particularly Scottish Water) to establish what level of infrastructure it is legitimate for house builders to provide for in their housing developments. In sum, we recommend that the Planning Bill should provide for a Community Infrastructure Fund to support residential and other development and funds allocated accordingly to address infrastructure problems in places such as West Lothian. There is also a need for the Planning Bill to establish the type and extent of planning gain that it is reasonable and legitimate for developers to be asked to provide.
Manor Kingdom Group: It is contended that the White Paper does not address adequately how planning permissions can be delivered more quickly. The principal source of delay is Section 75 agreements. In general we believe that there should be reduced reliance on Section 75 agreements which are being frequently and increasingly used. Where Section 75 agreements are required, on average they add a further 12 months to the approval process but in other cases significantly longer following the issue of the" minded to grant" letter. Manor Kingdom's view is that the planning permission should at a minimum set out the Heads of Agreement where a Section 75 agreement is required. We note that Appendix 6 states that the Heads of Agreement should be public and assume that the planning consent is the preferred vehicle for achieving this. There could also be increased scope for model agreements and we consider that the Scottish Executive should advise further on their scope. Not only does there not appear to be any intention to set up a Community Infrastructure Fund in Scotland, the Scottish Executive does not appear to be prepared to make funds available to councils for infrastructure to support house building. On the contrary, the policy appears to be to encourage councils and Scottish Water to pass on as many costs as possible to the house builder. If this is to be the future norm with a new tax on top, house prices will be kept under relentless pressure, house production is likely to fall and the need for affordable houses will increase. The Barker Report recognises that there are limits to what it is sensible to require developers to provide and that is particularly true in Scotland where there is not the help of an enabling body similar to English Partnerships (see later), there is no Community Infrastructure Fund to provide gap funding and developers are increasingly expected to subsidise Scottish Water. Manor Kingdom shares Homes for Scotland's call to create a code of practice or other similar document for public utilities (particularly Scottish Water) to establish what level of infrastructure it is legitimate for house builders to provide for in their housing developments.
Muir Group: The Barker Report recognised that there are limits to what it is sensible to require developers to provide and it is therefore necessary that the Planning Bill establishes the type and extent of planning gains that it is reasonable and legitimate for developers to be required to provide.
Persimmon Homes: Greater guidance on the application of Planning Agreements is necessary and the proposed approach is welcomed as establishing greater consistency. Negotiating PAs can be time consuming and model conditions/ agreements produced by the Executive should be considered by the review.
Other Businesses
ASDA: The White Paper proposals would bring the Scottish provisions broadly in line with those in England but without provision for Voluntary Contributions Schemes. The scope of agreements is a matter of law rather than Government policy and has been determined by the Courts. The current mismatch between Government policy and the legal position is not helpful and so new guidance would be welcome. Any assistance that can be given to speed the process of negotiating and concluding agreements is also welcome as is the ability to appeal against the provisions after 5 years.
Edinburgh Chamber of Commerce: We welcome the introduction of planning agreements and obligations as a less bureaucratic means of meeting early agreement and wasting time and expenses in the planning process. We would suggest that this is also the appropriate time for Good Neighbour agreements, rather than them being visited on applicants after the time and expense of an application has been gone through.
Federation of Small Businesses: The FSB would welcome any moves to ensure that planning agreements are not only more transparent, but also used in a proportionate manner. We accept the logic for putting in place measures to ensure that large developments do not unduly affect the infrastructure or services of the area (or compensate for lost facilities) but many small scale developers believe they have been unfairly asked to contribute towards projects that have no relation to the impact of their development.
Forth Ports PLC: Welcomes the proposed review of planning agreements and the potential introduction of planning obligations involving a unilateral offer on behalf of applicants. Further research is necessary on this issue and Forth Ports plc would welcome the opportunity to contribute to this debate.
Scottish Chambers of Commerce: The Barker Report recognised that there are limits to what it is sensible to require developers to provide and it is therefore necessary that the Planning Bill, or subsequent guidance, establishes the type and extent of planning gains that it is reasonable and legitimate for developers to be required to provide.
Scottish Rural Property & Business Association: Further detail is needed on the extent of these proposed changes. We welcome the intention to issue new guidance in place of Circular 12/1996. The revised guidance should emphasise that Section 75 agreements are to be used only as a measure of last resort, when planning conditions and other forms of agreement are not appropriate, judged according to specified and clear criteria.
UNITE Group plc: More consultation is required to define the scope of planning agreements and when these are applied in practice.
Universities Superannuation Scheme Ltd ( USS): We consider that significant clarification and explanation will be required as to how the framework governing planning agreements will be implemented.
Professional Organisations
RICS Scotland:RICS Scotland supports the simplification of Planning Agreements and Obligations, as it is both costly and time-consuming using the current procedure. We believe that it is important that there is consistency of approach in this area.
RTPI Scotland: With regard to planning agreements, we feel that further work is required to identify how suitable frameworks can be included in local development plans to guide developer contributions. If these are reviewable only in five year reviews, and are connected to scales of financial contribution, the frameworks could be one incentive to keep plans up to date.
Planning Consultants, Architects and Lawyers
Bell & Scott: We consider that this is an area which requires greater consideration and more detailed proposals than are contained in the White Paper (including Appendix 6). However, we recognise the intention to update the guidance on the use of planning agreements and would hope that there will be consultation on that guidance before it is issued. For example, we would hope that the guidance will go further than simply clarifying issues such as scope, and will give an opportunity to look at standardisation of wording and methods of delivery. related matter is, of course, the question of planning gain and we are disappointed to note that there are no concrete proposals in the White Paper for bringing about a more transparent and equitable approach to the issue of planning gain than exists at present, given that discussions and negotiations relating to planning gain now form such a significant part of the planning process particularly in larger developments.
Collar, Neil: I doubt whether unilateral obligations will make appeal processes more efficient. The current practice is for proposed heads of terms for a section 75 agreement to be debated during the appeal. If the proposed development and heads of terms are considered acceptable, a letter is issued intimating an intention to grant permission and giving the parties a specified period of time to complete the agreement, often 3 months. That is an efficient process, because it avoids negotiating the detail of the agreement until it is clear that permission is to be granted. Giving the applicant the right to make a unilateral obligation might suggest a saving of the period of time between the minded to grant letter and conclusion of the agreement. However, at what price for increased inquiry time? In addition to the heads of terms being debated as part of the appeal, the local authority would want to debate the acceptability of the detail of the obligation, including any shortcomings in detailed drafting and omissions. That debate would lengthen the appeal process. It is therefore important that the current system of proposed heads of terms for a section 75 agreement be retained as an option. It is disappointing that the White Paper does not contain any proposals for dealing with developer contributions/planning gain. Rather than rely on guidance, the legislation should be amended to indicate the limits to developer contributions/planning gain. The legal scope of planning conditions should be widened to avoid the need for planning agreements. The Planning Bill should also amend the existing section 75 to empower planning authorities to enter into agreements for sites in which they have a landownership interest. There is currently uncertainty about whether section 75 agreements are competent in such circumstances.
Drivers Jonas: We consider that significant clarification and explanation will be required as to how the framework governing planning agreements will be implemented.
Paull & Williamsons: It is disappointing that the changes to s.75 agreements do not seek to bring the obligations in such agreements in line with the policy advice in Circular 12/1996. While the Circular advises that such obligations should be reasonable and proportionate, it remains open to planning authorities to seek obligations which are neither and some do so.
Warren Consultants: The White Paper is not clear on this point, but if the intention is that planning agreements could be the subject of appeal where they are not at the present time, then this is a good proposal. Under Circular 12/96, planning agreements are used where conditions cannot be used because it is impossible to meet the tests of Circular 4/1998. If conditions can be a matter of appeal, then it follows that planning agreements should be as well.
Academic Bodies
University of Edinburgh: The UoE supports the improvement to the framework governing planning agreements and in particular allowing unilateral obligations to be submitted by applicants. However, any move to introduce unilateral obligations should include a time limit where the planning authority has to respond to the proposed obligations otherwise they are deemed to be acceptable. The White Paper does not set out proposals as to how the time it takes for a planning agreement to be signed can be reduced and the UoE believe this merits consideration. In most cases the time it takes to draft a planning agreement is unacceptable and any move to speed up this process would be welcomed.
Voluntary Organisations
Brethren Gospel Trusts: Amendments to Section 7S to permit Unilateral Planning Obligations as part of the planning application or appeal process will speed up decision making. This is supported. The use of Unilateral Planning Obligations in England and Wales has materially assisted timely determination of applications and/or appeals.
General Trustees of the Church of Scotland: While the Trustees generally welcome proposals to make the operation of planning agreements more transparent, the reality is that as the proposals do not include a right of appeal against the terms of a planning agreement, the negotiating of such agreements will continue to be less than a level playing field.
Peebles Civic Society: We agree that the public should be informed of Planning Agreements (S75s) as this would make controversial developments more acceptable.
Quarry Traffic Monitoring Group: We welcome the proposals outlined in this section. The problems currently confronting this community relate almost entirely to the movement of aggregates by road. Argyll and Bute Council has refused to address this in a fair and objective manner rejecting outright the possibility of using planning agreements or obligations.
Scottish Federation of Housing Associations: Section 75 agreements and the principles of commuted payments should be reviewed. One of the ways of streamlining Section 75s would be through Scottish Executive providing clear guidance and model Section 75 agreements, for use across Scotland. However, the key objective here is to make Section 75 agreements consistent, as well as transparent.
Scottish Renewables Forum: Post resolution to consent, s75 negotiations can often be unnecessarily protracted and expensive. We propose that the Aberdeenshire Model - were a dedicated s75 officer handles this process - becomes formally implemented as standard practice across all LPAs, with planning obligations negotiations actively addressed from the outset of the application.
Community Councils
Culter Community Council: Will placing these on the public register be sufficient, without a statutory requirement, to ensure that at the end of the day 'promises' are delivered?
Currie Community Council: A Section 75 agreement needs clear explanation in section 10 - where it is derived, etc.
Dunblane Community Council: With regard to Section 75 Agreements, this Community Council has direct experience of a Section 75 where the idea was good in principle but in practice was broken. We would support strengthening of the enforcement procedures for such agreements.
Dunfermline and Coast Association of Community Councils: The White Paper proposals requiring authorities to place agreements on the public register, to monitor the delivery of items in the agreements and place the information in the public domain already occurs in many authorities. The problem is the time and cost it takes to chase developers to meet their requirements the White Paper does not address this. What is required is a Scottish wide register, Communities could access, which could show the complaints on lack of delivery received from Communities, the companies concerned, the time taking to resolve the complaints and the cost to the Council. Any developments that have as a starting point the sale of properties without the benefits to the Community being realised prior to the sale should be rejected. This would address many of the concerns above and would place a higher trust than exists at present.
Garioch Area Forum of Community Councils: The proposal that developers' contributions (Planning Gain) should become more transparent is supported so far as it goes, however a major complaint in the past is that such contributions have not necessarily benefited the communities affected by the particular development. We would like to see Community Councils being consulted as a right when contributions are being discussed. We accept that there may be commercial considerations which could limit the amount of information that can be given but, as presumably such discussions will take place only after broad agreement over the planning issue has been achieved, these should not be a major inhibition to open discussion. While the white paper proposes that such agreements would be placed in the public domain, it is not clear as to how they are to be arrived at prior to their publication.
Greengairs Community Council and Greengairs Environmental Forum: Community benefits, economic benefits, environmental benefits and even jobs are used and abused as reasons for approval of planning applications but none of these are accountable nor are they agreed with the affected community. It has been our experience that any benefits tend to relate to other communities not immediately affected while we live with the adverse impacts of the development and gain none of the benefits.
Pitlochry & Moulin Community Council: Developers should be made to take into account the affect of their plans on the local infrastructure. At present this is undertaken at a later stage by the local authority & thereby once again falling on the community tax payers as opposed to the developer who will be making the money.
Scottish Civic Trust (and Civic Trust Network): At the moment these tend to be treated as a matter for the LPA and the applicant. Welcome increased transparency. Process is an issue and there is an issue if they should be open to comments/ scrutiny. We object to the one sided approach with the applicant being able to drive the agreement. Planning agreements should be used to stipulate the levels of information required for processing the application.
Private Individuals
Anonymous: The public perception in this area is that deals are done behind closed doors in order to push through certain developments and publication of these agreements would go some way towards improving public confidence in the system.