PlanningBlog – Brodies LLP

It’s difficult to get excited about the new draft regulations on planning obligations and good neighbour agreements (GNAs), produced as part of the Scottish Government’s latest planning consultation.  Yawn. End of  blog….

But seriously….the regulations deal with the mechanics of an application for discharge or modification of both types of document, but alas the billion dollar question remains unanswered – when will such applications be appropriate? As Robert highlighted in a previous blog, there are no criteria built in to the amended provisions of the 1997 Act. Given that the  regs too remain silent, we can only assume that some guidance will be given in yet another Circular further down the line. I’d be interested to hear any info to the contrary.

The consultation paper is keen to discourage any comment on the use of planning agreements or GNAs.  That particular horse has bolted.  So what are we left with?

Amongst other things, the draft regs deal with the issue of notification. Who should be told when an application for discharge or modification is lodged? The regs currently provide only for notification to a relevant landowner (where not the applicant), any other party subject to obligations, or the relevant community body in the case of GNAs (again where not the applicant).  No doubt for many cases, an obligation to notify objectors to the original planning application would be prohibitive, and so it seems inevitable that community councils at least will be added to  the notification requirement before the regs are finalised.

A period of 21 days is suggested for representations to be submitted in respect of an application for modification or discharge, and a period of 2 months for determination of the application by the planning authority, in line with normal  timescales under the development management regulations (for local/non-EIA  development). Interestingly no reference is made, at any stage in the regs or in the relevant part of the Act itself,  to the planning hierarchy. Accordingly, any appeal against a planning authority’s refusal or non-determination of an application for modification or discharge must be made to the Scottish Ministers.  No doubt LRBs have quite enough to contend with, but a little odd when you consider that LRBs will have to assess the need for section 75s or GNAs in the context of their general business. Where an appeal is lodged, it is proposed that it will be governed by the existing 2008 Appeals Regulations. 

So for all those consultation junkies keen to engage, we have  another opportunity to throw in our tuppence worth.  But it’s what we aren’t told in these draft regulations that is likely to stimulate the most debate.