Moves to create a clearer framework for planning agreements could see councils receiving less benefit from local developments, leaving local authorities hit by a double whammy of budget cuts and diminished planning gain, warns Martin Drummond, a planning consultant at legal firm Tods Murray LLP. But, he says, if councils and developers hold true to the collaborative spirit of the planned legislation "everyone wins".

The Scottish Government's consultation on the issue of planning obligations is now concluded. Councils and developers are anticipating far-reaching changes later this year to the planning agreement process under Section 75 of the Town and Country Planning Scotland Act 1997.

New legislation is likely to favour the developer, particularly if the proposed right of appeal to Scottish Ministers for applicants is introduced, putting councils under more scrutiny and greater pressure to compromise. But Drummond argues that the new regulations herald a fresh approach and are a win-win for both councils and developers.

He said: "Planning agreements have been part of established planning practice for many years and are now an accepted part of the planning process, particularly where major developments are concerned and the planning authority wishes to capture some 'planning gain' for the community."
 

Typically, such gains have been characterised by financial payments for roads infrastructure, social assets such as schools, playing fields etc. More recently they have been used to facilitate environmental gains such as green transportation and commitments to lower carbon emissions.
 

"What the government is now saying to those involved in planning in Scotland is that the way in which such agreements are entered into must be better codified - and there are now various tests, all of which have to be met, before an agreement could be considered acceptable," he said.
 

"Now, for the first time, where a developer or landowner is seeking to obtain planning permission and that permission will be contingent upon the entering of a planning agreement and that agreement cannot be reached, then the applicant will have a right of appeal to Scottish Ministers on the financial viability of the agreement or its acceptability in wider planning terms."
 

Some councils will feel that this could hit them hard at a time when they must squeeze every penny out of their budgets, or look for new ways to generate value for their communities. However, Drummond points out that many development proposals have been postponed or abandoned because local authority requirements rendered them impossible in the current market - and that these present an opportunity.
 

"The new legislation indicates that government and councils are now more in tune with the needs of the development industry and this paves the way for greater collaboration. Through the new legislation and guidance we will see some of the country's larger development projects commence and accelerate towards completion - as well as many of the smaller ones beginning to see the light of day - providing a much needed stimulus to the local economy."

www.todsmurray.com
www.scotland.gov.uk