Implementation of the Planning (Scotland) Act 2019 – It’s a marathon, not a sprint!

With the latest provisions of the Planning (Scotland) Act 2019 (the “2019 Act”) coming into force on November 18 2020, we look at these significant changes as well as providing a round-up of some of the other key provisions already brought into force.

The Planning (Scotland) Act 2019 – Background

The Planning (Scotland) Bill received Royal Assent on the 25th of July 2019, having been the most amended Bill to go through the Scottish Parliament to date. More information about the provisions of the 2019 Act, which amends the Town and Country Planning (Scotland) Act 1997 (the “1997 Act”), can be found in our previous article here.

The Latest Commencement Regulations

On 18 November 2020, sections 34 and 37 of the 2019 Act will be brought into force. These provisions concern planning obligations in terms of section 75 of the 1997 Act and can be summarised as follows:

• Section 34: the principal effect of this section is to clarify that a planning obligation will now be able to require the payment of financial contribution(s) only. Currently, the legislation requires that the planning obligation also restrict or regulate the development or use of land.
• Section 37: this section will introduce greater flexibility to the modification and discharge of planning obligations under section 75A of the 1997 Act. First, it will allow a planning obligation to be modified or discharged by agreement between the planning authority and those against whom it is enforceable, without the need for a formal application. Secondly, it also allows an application for modification or discharge of a planning obligation to be determined in a manner different to that applied for, with the consent of the applicant and any other party whose burden will be increased as a result of any modification. At present, applications can only be approved or refused meaning there is no flexibility to agree an alternative proposal which may be acceptable to both the planning authority and all other parties, and such alternative proposals would need to be the subject of a new application. This greater flexibility is therefore likely to be welcomed.

The amendments made under section 34 of the 2019 Act will not affect the validity of any planning obligations entered in to before 18 November 2020 but existing planning obligations will benefit from the additional flexibility applicable to proposed modifications and discharges.

The story so far

Many of the previous commencement regulations have brought into force provisions in the 2019 Act which allow the Scottish Ministers to make regulations which will provide further detail of changes. Much of the detail of the changes arising from the 2019 Act will be brought forward through regulations by the Scottish Ministers and those regulations are still awaited. However, some of the notable changes which have been brought into force already are set out below:

Conclusions

The latest commencement regulations introduce significant changes to planning obligations, with the provisions in respect of modifications and discharges likely to be particularly welcomed.

Some significant provisions in the 2019 Act are already in force, as can be seen above. However, there is still a substantial number of provisions of the 2019 Act to be brought into force, as well as a significant amount of secondary legislation. The original programme for implementation of the 2019 Act aimed to see most of its provisions implemented by 2021, but it is clear that the current public health situation will result in a delay to this programme. The Scottish Government is currently preparing a revised programme.

Much like the process prior to the 2019 Act being passed, what is clear is that we are in for a marathon rather than a sprint.

Article co-authored by Megan O’Neill.