Planning Obligations and Good Neighbour Agreements
Continuing our look at the services and expertise available from associate members, Gary McGovern, Senior Associate at McGrigors LLP (right) outlines the key points arising from the Scottish Government's consultation on regulations in relation to planning obligations and Good Neighbour Agreements.
“The content of the draft regulations, in so far as it goes, is relatively uncontroversial. A party wishing to modify or discharge a planning obligation/GNA will apply to the planning authority in writing. The application must set out the grounds on which the modification or discharge is being sought but also, "to the extent known to the applicant", the names and addresses of other parties to the agreement and other "interested parties", which have been defined as the owner, any person against whom the obligation is enforceable and in the case of GNAs, the community body. Once the application has been validated, the authority has five working days to notify every interested party, who in turn have twenty one days to make representations on the application. The authority has two months to determine the application.
“As the drafts stand, the planning authority is not required to make any investigations into the whereabouts of the interested parties and can accept the information given to them by the applicant at face value. Faced with an applicant who says he simply does not know, there may be an appetite to introduce a cursory check against public records. There may also be moves to extend the scope of interested parties although an extension to all who commented on the original application may be too prohibitive. Finally, it appears as though any appeal would be to the Scottish Ministers, even where the original application was determined by the local review body.
“What the regulations do not do, is give us any indication of when a GNA may be appropriate or what it should contain. The introduction to the consultation makes it very clear that the principle of GNAs has already been determined. However, anyone involved in consultation prior to the 2006 Act will recall that most respondents from the business community were concerned that many questions remained unanswered and expressed the view that whilst GNAs may have a place in particular types of development, by and large they were not needed; there being sufficient controls already in existence. This consultation does nothing to address those questions and leaves us in a somewhat unsatisfying situation.
“Although the consultation stresses that GNAs are intended to be voluntary, planning obligations are also, in theory, voluntary agreements and all will be familiar with the practice which has developed whereby planning agreements are regularly required as a matter of course. At least in relation to planning obligations, we do have some national guidance (now set out in Circular 1/2010); but in so far as we are aware, there is no intention to issue further guidance regarding GNAs.
“This consultation does nothing to advance the debate or reassure those concerned and it will be a brave developer who volunteers to enter into a GNA against this background."
For further information, please contact Gary by telephone on 0141 567 8686 or by email via gary.mcgovern@mcgrigors.com.
NB: Any associate members wishing to find out more about our “Spotlight on ...” feature should contact Jennifer Kennedy at the Homes for Scotland office.