Death of the section 75?

In Robert’s recent blog Reviewing your Obligations, mention was made of the increasing use of planning agreements as discussed at a Scottish Government workshop. No doubt this reflected the trend over recent years. But are section 75s now on the way out, and conditions the new king?

It is widely recognised that Circular 1/2010 tightened up the criteria for use of planning agreements. Presumably similar policy considerations will apply in the future to “planning obligations” – unilateral or otherwise. The inevitable consequence of this – a greater use of planning conditions, and increased developer confidence in resisting the use of agreements or obligations, where the policy tests are not met.

The Scottish Ministers and Reporters are already giving a strong steer on this with some surprising results. Conditions can, it seems, be used to secure the payment of money, albeit where there is no phasing. The Beauly Denny decision makes for interesting reading in this respect. Suspensive conditions attached to the deemed planning permission prevented works from commencing until payments were made to Perth and Kinross Council and the Cairngorms National Park Authority to carry out various mitigation measures. Another suspensive condition effectively required a section 96 roads agreement to be concluded. No “minded to grant” stage was necessary.

It is sometimes argued that the drafting of Electricity Act consents should not be relied upon in considering good planning practice. However these conditions were clearly planning conditions, and were produced following one of the most high-profile (and highly lawyered) public inquiries in Scotland.

On a similar note, Brodies’ clients recently achieved success in a deemed refusal appeal where the Reporter again relied on suspensive conditions to tackle planning gain requirements typically found in a section 75, including affordable housing and necessary road improvements. The appeal was lodged around 6 months after the local planning authority resolved to grant the consent subject to the conclusion of an agreement. During that time no draft had been produced by the authority, nor had any real detail been given of the package they required. In these circumstances, and in light of the new Circular, the Reporter recognised it would be pointless to issue an “Intentions Notice”. The conditional consent issued inevitably still requires some horsetrading to take place, but in the meantime the development value of the site is already established, and the land may be sold on with the benefit of the consent.

The new unilateral obligations under section 75 will clearly offer a solution where planning gain negotiations have stalled or parties are poles apart, but if a condition will ultimately do the job, then a developer can stay away from section 75 altogether. It might be argued that the new breed of conditions being tested in appeal cases is simply taking on the role that was always envisaged under Circular 4/1998, and that past section 75 practice has frequently been out of step with policy. Either way, the intention of Ministers is clear, and we can expect future stats on section 75s to start to dip.

News of the death of the section 75 might be a little exaggerated, but it’s beginning to look like a pale shadow of its former self…