The Scottish Ministers have made the Planning etc. (Scotland) Act 2006 (Saving and Transitional Provisions) Amendment Order 2011 (the "Order") in relation to Section 75 Agreements. The Order is due to come into force on 14th November 2011.

The Order confirms and clarifies that applications for modifications, discharges and appeals will be available in relation to agreements entered into before 1 February 2011 under Section 75 of the Town and Country Planning (Scotland) Act 1997 (the "Act"). The provisions in relation to continuing liability for former owners will not apply to such agreements.

The Order substitutes Article 3 of the 2010 Order with a provision confirming that planning agreements entered prior to 1 February 2011 "shall have effect as if made under Section 75 (planning obligations) of the Act as that provision has effect on 1st February 2011." The Order details that Sections 75, 75A (modification and discharge of planning obligations) and 75B (appeals) shall each have retrospective effect. The Order also makes it clear that the following provisions of the Act shall not apply to planning agreements entered prior to 1 February 2011:

• Section 75(5), which specifies the circumstances in which a planning obligation is enforceable against an owner and against a tenant;
• S75(6), which confirms that a S75 Obligation shall not be enforceable against a third party who acquired a right to land prior to the planning obligation being recorded or registered; and
• S75C, which provides for the continuing liability of former owners in respect of a planning obligation in certain circumstances.

The Order follows a letter from the Scottish Government dated 25 July 2011, which sought to end a period of uncertainty surrounding the retrospective nature of existing planning agreements. Whilst the letter justified the retrospective nature of Sections 75A and B of the Act on the basis of S17(2)(b) of the Interpretation Act 1978, it made clear that the matter required legislative clarification.

In practice, the Order will provide developers with the right to apply to a planning authority for the modification or discharge of an existing planning agreement entered into before 1 February 2011, with a right of appeal to the Scottish Ministers where the planning authority refuse to modify or discharge the agreement, or fail to determine the application within two months of the date of validation.

Further information

For further information on this and any other planning issue please contact Alastair McKie or  Cecilia O'Connell or your usual contact at Anderson Strathern.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.