The Scottish Government

The use of Section 75 Agreements as opposed to (suspensive) conditions varies among planning authorities. What flaws are attached to the wider use of appropriately worded conditions which may avoid the necessity of concluding Agreements?

Can the assumption be made that it is common practice for developers to be expected to take (and accept) responsibility for actually providing the infrastructure/services that bear an undisputed direct and proportionate relationship to their developments? Are there instances where the local authority obtains a financial contribution and undertakes the work itself and if so are there any flaws in this arrangement?

From your experience of the use of Section 75 agreements in what respect have you found the mechanism wanting, if at all? If you have criticisms do you think that these can be overcome by minor modifications to the terms of Sec.75 and/or to Circular 12/1996 to clarify the relationship between the law and policy? Alternatively, do you think that the opportunity should be taken in Scotland to comprehensively review mechanisms for the positive planning of sustainable communities?

If you consider that a fundamental review of the mechanisms for funding infrastructure and public services/facilities should the regulatory burden be entirely borne by the planning system or is there a more effective way of achieving the objectives of both the developer and service provider(s) e.g. fiscal measures ?

If it is accepted that developer obligations should be related to the impact of the development ( i.e. relevant, proportionate and reasonable) what techniques could be used to define the actual likely off site impact of a proposal across the full range of public services/facilities?

The consultation paper on the subject of planning obligations published in November 2003 by OPDM has rejected earlier suggestions that LPAs should set standardised tariffs for different types of development. The model now proposed retains the Section 106 Agreement method but offers an option of a charge-based approach positively linked to the provisions of the development plan ( See Briefing Paper). Could such a model or a variation of it have applicability in Scotland

Such an approach would involve a greater reliance than presently on issues of valuation and development appraisal and have implications for development planning . How could planning authorities best respond to such challenges given the issues of skills base, staff resources and the current agenda for streamlining local plan timescales?

It is common practice for English planning authorities to complement development plan policies relating to obligations with detailed Supplementary Planning Guidance including tariffs (where applicable) and monitoring statements. Are you aware of any examples of such practice in Scotland ?

Major mixed use developments on greenfield sites in particular can involve multiple developers and several infrastructure/service providers. Phasing and the apportionment of liability can be difficult issues to satisfactorily resolve. I would like to explore examples where multi lateral and complex agreements have been concluded and implemented . Are you aware of any Infrastructure Trusts or similar mechanisms which have been successful in this regard?

Would it be appropriate for statute to ensure that all Agreements contain provisions for regular review and for an appeal to Scottish Ministers where review negotiations break down?

There is no current statutory obligation for heads of agreement to be disclosed. There is neither a requirement for public participation to take place during negotiations nor for the mandatory recording of completed agreements either in the Register of Sasines/Land Registry or on Part 2 of the statutory register. In the interests of openness and accountability how far should public participation extend (beyond that related to development planning) and what provision if any should be introduced into legislation?

Are you aware of any innovative approaches adopted to the preparation conclusion implementation or enforcement of Section 75 or similar Agreements which have overcome many of the common criticisms of the process?

Most local plans contain a policy or policies relating to Agreements and developer contributions. Most are general in their wording. I would like to identify examples which are more prescriptive in their wording and / or where Reporters have made noteworthy recommendations post inquiry and the reactions of Councils to these. Do you have examples to share?

Delivering affordable housing is a key government objective and the use of legal agreements to help support this objective is a particularly testing issue. I would welcome illustrations as to how this has been successfully achieved; and/or illustrations of the difficulties experienced in drafting and implementing development plan policies and related legal agreements to deliver affordable housing.