Many of our Land and Rural Business newsletter readers will be aware that, until relatively recently, rural development proposals have often been granted planning permission subject to the conclusion of a restrictive planning agreement.

In the case of a new house in the countryside, such agreements have often ‘tied’ to the land by way of a restriction on the sale or disposal of the house separately from an associated rural business, and/or restricting the occupancy of the house to an agricultural worker or other specified category of individual.

Where the planning agreement is registered against the title, as is standard (whether land or sasine registered), then the same restrictions bind any future purchaser of (or successor to) the land. This can lead to difficulties selling affected land/property and also constrains the ability to obtain a mortgage.

Policy change

Since 2014, the Scottish Government’s national planning policy has stated that such occupancy restrictions “should be avoided”. Since then most Councils have adopted Local Development Plans with specific policies addressing rural development and farm diversification which reflect national policy without resorting to occupancy restrictions.

However, planning agreements entered into before the change in policy direction still have effect where they remain on the title. In addition, some Councils still insist upon such restrictions being imposed despite the policy position. Unfortunately, it is usually only when change is afoot – for example, a proposed sale, or succession planning - that the effect of restrictive planning agreements can come into focus.

What can be done?

The mechanism for modifying or discharging planning agreements, including those containing occupancy restrictions, is known as a s.75A application. The application is made to the relevant Council’s planning department. There is no application fee for submitting an application, and an application can be made at any time. In the event that the Council refuses the application, there is a right of appeal to the Scottish Ministers (again with no associated fee).

Section 75A applications are determined in accordance with Scottish Government planning policy relating to planning agreements. So for example, an obligation within a planning agreement must meet a number of tests which include necessity and reasonableness. If all relevant tests are not satisfied, then the s.75A application should be granted. A s.75A application should also address the relevant background, the development plan position and other relevant planning policy and guidance. If circumstances have changed since the agreement was concluded, this may also help to “make the case”.

We recently assisted a client in making a s.75A application following the death of a parent. This had necessitated the sale of a property ‘tied’ to a farm in order to raise funds. In that instance, we were successful in arguing that it was no longer reasonable for the Council to insist on ‘tying’ the property to the land and accordingly the agreement was discharged.

It is worth remembering that planning agreements can contain different types of obligation which are frequently used to secure future payments for infrastructure or to oblige the landowner to carry out works of some sort. The same policy tests apply regardless of the type of obligation. Our planning team has significant experience of the s.75A process across Scotland and would be pleased to discuss any concerns you may have.