Planning Obligations And Unilateral Undertakings - A Need For Care

Having regard to the current economic climate, planning authorities may scale back what they seek by way of developer contributions or alternatively become more realistic about the timescale for payment. Contributions from developers are however still a significant part of the planning system in Scotland where of course they can be properly justified. The current justification can be found in Circular 01/2010 (Click here to view). Since that Circular came in the changes made to the Town & Country Planning (Scotland) Act 1997 by the Planning Etc (Scotland) Act have become effective and we now have a new Section 75 in place (Click here to view our article on Section 75 and other Planning Agreements).

The revised Section 75 makes provision for a new type of planning agreement (a good neighbour agreement), for unilateral planning obligations and for the modification of planning agreements/obligations. While it still early days this last provision is somewhat controversial. There are apparently different views amongst planning authorities about whether or not the section applies retrospectively to old style Section 75 Agreements which were put in place some time ago. There is also some doubt about whether or not variation/modification in terms of the Act replaces all other means of modification/variation with the consequence that formal application must (and can only) be made in terms of the Act.

The law in England is slightly different but unilateral undertakings are already in use – indeed unilateral undertakings have been available in England for some considerable time. Three recent English cases illustrate points which might be relevant in Scotland to unilateral undertakings and planning obligations more generally.

The first case concerns a unilateral undertaking dated 22 March 2007. It was made in relation to an application for planning permission which itself was made in 2006 and refused that year. An appeal was made successfully – the decision letter from the appeal being dated 9 May 2007. It appears therefore the undertaking was granted in anticipation of the appeal being considered.

In the decision letter on the appeal the Inspector (equivalent of the Reporter) came to the view that while the Council had sought contributions for certain infrastructure issues which had been addressed by the applicant/appellant (by way of undertakings) the Council did nothing to show that these contributions were required to satisfy any policy...