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Section 75 agreements & impact on the planning process

Section 75 agreements & impact on the planning process

Section 75 Agreements have been part of the planning process for some time. In recent years their use has increased as a means of addressing issues which may flow from a planning application. The Scottish Government issued guidance setting out Policy Tests which must be met before a Section 75 Agreement is to be used. Section 75 Agreements do not replicate planning conditions, instead they introduce planning obligations.

The Policy Tests are as follows:

  • Should be necessary;
  • Should serve a planning purpose;
  • Should be related to the proposed development;
  • The obligations in the Agreement should be fair and reasonably relate in scale and in kind to the proposed development; and
  • Should be reasonable in all other respects.

A Section 75 Agreement can deal with a variety of planning obligations, including:

  • financial contributions.
  • how payments are made e.g. single payment, periodic sums.

Are Section 75 agreements binding?

  • They are normally recorded in the Sasine Register or registered in the Land Register, this makes them binding on the title holder and heritable successors.
  • There is a specific provision which includes heritable creditors in possession within the definition of 'owners' insofar as enforcement of a Section 75 is concerned.
  • The 2006 Planning Act now allows a landowner, having sought to vary a Section 75 with the concurrence of the Planning Authority, to have the ability to appeal to Scottish Ministers in the event that such authority cannot, or will not, look to make such a variation.
  • In the event that a Section 75 Agreement has been registered or recorded against a property, title requires that any variation or discharge of same also needs to be registered against the title.

Similar to Section 75 Agreements, Good Neighbour Agreements can also be used to impose obligations as part of the planning process. They require to be entered into with a community body and encompass planning arrangements, but not the requirement to pay any monetary sums. Primarily they deal with how land is to be utilised. Despite their introduction, Good Neighbour Agreements are unusual but given that these exist, and planning consents may refer to Good Neighbour Agreements being entered into, those lodging planning applications should be live to their existence and what status they have on owners and their successors in title.

If you would like legal advice regarding any property matter, including section 75 or good neighbour agreements, please contact our team.

Written by : Christine Stuart