Love thy neighbour

The Localism agenda is in full swing in England and Wales, but Scotland may have stolen a march with its new planning procedures; most recently the introduction of good neighbour agreements on 1 February.

There has been an extensive period of reform of the Scottish planning system. A key aim was to make the system more inclusive, so local people can be more involved in the decisions that affect their communities.

This increased inclusiveness was part of the justification for rejecting calls for a third party right of appeal, and has led to new approaches such as compulsory pre-application consultation with communities for major developments.

Good neighbour agreements are intended to further the inclusiveness aim. The Scottish government sees these agreements as building trust between the developer and the community, encouraging businesses to take the views of local representatives groups into account in the way they operate a site or facility.

It’s tempting to write off good neighbour agreements as political posturing, but it is clear from the statutory provisions that these will not be mere pieces of paper. The agreement will be legally binding, and can even be registered in the Land Register so that future owners or occupiers will be bound in the same way as a planning obligation (section 75 in Scotland, section 106 in England and Wales).

Interestingly, the agreement will be between the developer and a community body. The statutory provisions do not mention any involvement by the planning authority, except for modifying or discharging an existing agreement. The community body will therefore need its own legal advice, which might discourage such bodies from getting involved unless they have lawyer members.

Breach of the agreement will be a matter of contract law, enforceable through the courts, which might also be off-putting for many community bodies.

The scope of these agreements is potentially wide-ranging: “governing operations or activities relating to the development or use of land”. In particular, the agreement may require operations or activities to be carried out, or require the land to be used in a specified way. It can also require the provision of information regarding the development or use of the site.

Significantly, there is a prohibition against requiring payments of money, which will prevent use for community benefit payments which are a common feature of wind energy developments. However, there is no prohibition against the developer agreeing to do work at its cost, provided that work is on the land specified in the agreement.

According to the Scottish government, issues covered could include hours of operation, patterns and frequency of vehicle movements, agreement on regular provision of information, environmental performance monitoring and agreement on site visits.

It is unclear how these agreements will interact with existing powers. For example, planning authorities already regulate operational issues such as hours of operation through planning permission conditions. Planning obligations are used for wider issues. Very occasionally there are gaps. For example, the developer might be willing to provide a community woodland, but want to retain legal title to the land. A good neighbour agreement could be used to give the community rights to maintain and operate the woodland, possibly in conjunction with the developer.

Astute developers already recognise that being a good neighbour is valuable in persuading councillors to grant planning permission. Offering to enter into a good neighbour agreement might be a logical extension, but there will be a wariness, given the potential for getting bogged down in drafting negotiations. And there’s no point making the offer if there isn’t a community body willing to get involved.

Given that these sorts of matters are already regulated by the planning authority through conditions/ obligations, incentive may be rare for either the developer or the community body, to get involved. It will be interesting to see what the early-adopters - whether community bodies or developers - come up with.

Neil Collar is head of planning law at Brodies