Modification and Discharge of Planning Obligations

(Section 75 Legal Agreements) Guidance Note

Legislation:
Planning Etc (Scotland) Act 2006 Section 75A – 75C
Circular 1/2010 Annex: Planning Agreements. Planning Obligations and Good
Neighbour Agreements

Introduction
These applications have been introduced to modify or discharge planning obligations (Old
Section 75 agreements) through the planning system. This is designed to be quick and easy
with Legal Services only being a consultee and signatory of any approval.

Pre-application
 If the site has a planning condition as well as a planning obligation then a planning
application to discharge the condition should be determined first. If approved then an
application to modify or discharge the planning obligation should be made. [Examples
1 & 2]
 The applicant must submit the change to wording of the planning obligation they wish
to incorporate in their titles. This wording cannot be amended during the application
and therefore Pre-apps are important for this type of application to agree wording
prior to submission. The merits of the application should also be discussed.
 If a separate application is made to discharge conditions then discussions on
planning obligations can take place at same time.
 Legal Services should be involved in pre-application discussions.
 These types of applications should only be used to modify a planning obligation to
either remove the burden or reduce it in scale. If the modification would result in the
bond, burden, land within obligation or use increasing in scale then a new planning
obligation needs to be created on the back of the new planning permission and the
old planning obligation removed separately. [Example 3]

Submission Requirements
 This type of application can only be made by a person to whom the obligation is
enforceable and cannot seek to specify a modification that would impose a burden on
any non applicant signatory of the planning obligation.
 The application should be accompanied by following:
1. Application form
2. Location plan
3. A copy of the planning obligation or enough information for us to identify it
4. Relationship of applicant with land and why obligation is enforceable on them
5. A document providing the new wording for the planning obligations. As stated
this cannot be changed during the application.
6. Grounds for the modification
7. Application form should include all names and addresses of other signatories
to the obligation and interested parties (landowners) and their addresses.

Registration of Application
 If the above details are provided then the application should be made valid and
support notified of this so an acknowledgement can be sent.
 There is no Neighbour Notification for this type of application and the Technicians
should be made aware of this on validation. No advert required either.
 The officer must notify all signatories to the obligations and interested parties using
the details provided by the applicant. There is a standard template available on
Uniform for this. There is no requirement for the Council to check this information is
correct.
 They have 21 days to make representation
 Legal Services must be consulted on this application.
Determination
 The officer has 2 months to determine the application.
 Currently there are no delegated powers for this type of application and therefore the
application will need to be presented to Committee. If however the application follows
a planning application to discharge a planning condition then there have been
instances in the past where the planning obligation application has been delegated.
This would be at the discretion of Senior Management.
 Legal Services must be happy with the wording of the planning obligation before
approval can be considered.
 If there is any issue with the wording then the application should be refused
(obligation continue to have affect without modification) as the wording cannot be
amended during the application.
 This type of application should not be considered against the development plan and
material considerations in the same manner as a planning application. The
application must be considered against the 5 tests of an appropriate planning
obligation (p3 of circular 1/2010 planning agreements). Section 25 of the planning Act
does not apply. Local plan policy or material considerations may feed into one of the
tests no longer being appropriate but the application must only be approved on failure
of the test.[Example 4]
 Reports should take each test in turn.

Decision Notice
 If an application is approved, the legal agreement modification needs to be sent to
Legal Services to be signed and witnessed by them. This can be done via email. The
signed hard copy however must be sent to the applicant and therefore before a
decision notice can be sent out, the officer must wait until they receive this copy.
 The legal agreement should be accompanied by a covering letter (template on
Uniform) and a copy of the signed planning obligation should be scanned into IDOX.
 The decision must be sent to all interested parties and signatories of the planning
obligation.
 This should all be carried out by the planning officer and ABM given that Uniform and
IDOX are not set up for this and that the signed copy must be sent out. Support
should be notified of when the decision leaves so that Uniform and IDOX can be
updated.
 Once the decision notice and modified planning obligation is sent out, the Council’s
involvement ends. It is for the applicant to send the decision to the Register of
Keepers.
Appendix – Examples

Example 1 – A dwellinghouse in the countryside is tied to the stables business through a

planning condition and planning obligation. An application should be made to remove the
condition first. If approved then an application to remove the planning obligation should
be made.

Example 2 – A dwellinghouse in the countryside is tied to the stables business through a

planning condition and planning obligation. An application has been approved to remove
the condition however the council have decided that the land should be restricted in
another manner to protect the countryside through another condition (maybe) and
different wording in the planning obligation. A new planning obligation should not be
drawn up on the back of the removal of the planning condition. Instead the original
obligation should be modified. Realistically this would allow both applications to be
determined within 2 months.

Example 3 – An individual applies to increase the size of an existing open cast coal mine.
The existing section 75 will no longer be adequate as the bond is too small and other
obligations do not provide enough restriction. If minded to grant a new planning obligation
should be drafted before planning permission is approved. The old planning obligation
can then be discharged through this application type. This allows the Council to retain
adequate restrictions and control on the site given the increase in burden.

Example 4 – A dwellinghouse in the countryside is tied to the stables business through a

planning obligation. Local Plan policy changes which allows for a dwellinghouse in this
area of the countryside without being tied to an appropriate business. Under the new local
plan policy a planning obligation is not necessary and therefore the existing planning
obligation would fail the first test (necessity). The application should therefore be
approved as the planning obligation failed a policy test due to local plan policy now
supporting the development.