Developer Contributions and Good Neighbour Agreements

Supplementary Guidance

October 2013

IMAGE: Orkney Islands Council crest above a photograph of a coastal settlement and shoreline. The cover text reads “Developer Contributions and Good Neighbour Agreements”, “Supplementary Guidance”, and “October 2013”.

Planning in Orkney

The Orkney Local Development Plan (the Plan), together with Supplementary Guidance sets out the policies and criteria against which planning applications submitted in Orkney will be considered. All of the policies in the Plan are afforded equal weight in the determination of planning applications. It is therefore important to ensure that your proposal accords with all relevant policies.

This guidance sets out detailed advice to help you meet the requirements of the Plan. It is therefore recommended that the document is read in conjunction with the policies contained within the Plan and any Supplementary Guidance relevant to the type of development proposed.

The Council’s Development Management Officers deal with planning applications and they would welcome the opportunity to discuss development proposals before any application is submitted.

Copies of this document

This document is available as a hard copy or in digital format. Please see www.orkney.gov.uk

Telephone: 01856 873535

Email: planning@orkney.gov.uk

Website: www.orkney.gov.uk/Service-Directory/D/Development-Management.htm

A glossary of planning terms used within the Council’s planning policy documents and supplementary guidance can be found online at:

http://www.orkney.gov.uk/Service-Directory/G/Glossary-of-Planning-Terms.ht,

Introduction — 1
1.1 Background — 1
1.2 Planning Policy — 2
1.3 How to use this guidance — 3
What contributions may be sought towards — 4
When contributions may be sought — 6
How contributions will be secured — 10
4.1 Planning Conditions — 11
4.2 Alternative Legal Agreements — 11
4.3 Planning Obligations — 11
Developer contributions — 12
5.1 Strategic Flood Risk Defences — 13
5.2 Affordable Housing — 13
5.3 Transport and Roads — 13
5.4 Open Space, Outdoor Access and Landscaping — 15
5.5 Education — 16
5.6 Libraries — 16
5.7 Recycling and Waste Management — 16
5.8 Arts and Heritage — 16
Process for negotiating and securing developer contributions — 17
Good Neighbour Agreements — 19
8.1 Parties to a GNA — 19
8.2 Scope of a GNA — 19
Further information — 20

1 Introduction

1.1 Background

Orkney Islands Council is committed to the creation of sustainable communities and economic development within the County. In order to ensure that the quality of life enjoyed in an area is not compromised by new development, the Council consider it is essential that new and existing communities are supported by an appropriate level of infrastructure, facilities and services. In some situations development proposals will have adverse impact on these, either directly, or by the introduction of increased burdens or pressures on facilities or amenities. In such circumstances it will be appropriate for the developer to include proposals for the mitigation of any adverse effect. In order to facilitate development and preserve the quality of life it is good practice to apply a consistent and equitable policy for the basis for and the Council’s expectations of developer contributions towards such mitigation.

Those development proposals identified as being potentially responsible for any increased burdens upon services, facilities or infrastructure must provide contributions towards the financial costs of enhancing them to a level commensurate with the increased burdens. Where the anticipated impacts of the development can be mitigated by planning conditions, these will be used in preference to any legal agreement. In other cases the developer may offer, or may be asked, to enter into a planning obligation in terms of section 75 of the TCPSA 1997.

Planning obligations entered into under section 75 may include payment of monies. It should be clearly understood that the provision of a financial payment or other ‘in kind’ contribution will never be used as a reason to approve a development proposal that is contrary to planning policy and is unacceptable on planning grounds. However, where a development is otherwise acceptable, developer contributions can provide a mechanism for applicants to fund or contribute to the provision, enhancement and/or maintenance of infrastructure, facilities and services to overcome constraints or to facilitate a given proposal, to the extent that the proposals may be rendered acceptable.

While this guidance establishes a process for developer contributions arising under the Planning Acts, this policy framework also provides guidance on developer contributions that may arise under other legislation.

1.2 Planning Policy

This Supplementary Guidance is being promoted in connection with Policy SD3, Infrastructure Delivery and Developer Contributions, of the Orkney Local Development Plan. This guidance and policy SD3 should also be read in conjunction with the Settlement Statements within the Local Development Plan and any adopted Masterplans or Development Briefs, which outline those infrastructure constraints in each of the Towns, Villages and Rural Settlements, that are known to the Planning Authority.

Where planning obligations, as opposed to conditions, will be required the principles established in SG Circular 3/2012 – Planning Obligations and Good Neighbour Agreements are reflected in Policy SD3 and this Supplementary Guidance. In summary, the circular establishes the following policy tests for the appropriateness of a planning obligation by a developer, all of which should be met:

Necessary to make the proposed development acceptable in planning terms.
Serve a planning purpose and, where it is possible to identify infrastructure provision requirements in advance, should be relevant to development plans.
Relate to the proposed development either as a direct consequence of the development or arising from the cumulative impact of development in the area.
Fairly and reasonably relate in scale and kind to the proposed development.
Reasonable in all other respects.

Policy SD3

Infrastructure delivery and developer contributions

Development must be accompanied by the infrastructure, services and facilities required to support new or expanded communities and the scale and type of developments proposed and will be supported where:

The applicant makes a fair and reasonable contribution, in cash or in kind, towards the cost of public services, open space, community facilities and/or infrastructure and the mitigation of adverse environmental effects, which is directly related to the development proposal and where the need for the contribution arises from its implementation (this will include cumulative effects that can reasonably be predicted).
The applicant agrees, where necessary, to make a fair and reasonable contribution to the cost of infrastructure or of community facilities that have already been delivered by public sources, but which are directly related to the cumulative effect of the development.
Such contributions are consistent with the scale and nature of the development and are based on the requirements set out in the settlement statements.

In all cases, the need for, and scale of, any contribution will be reviewed in the light of circumstances at the time the planning application is made and planning permission will only be granted following the establishment of a financial mechanism to secure the necessary funding (for example, a letter of credit or financial bond) or through conclusion of a Section 75 planning agreement. Further guidance is provided in them Supplementary Guidance Developer contributions.

1.3 How to use this guidance

This guidance provides an overview of the types of development from which contributions may be sought, and the infrastructure, facilities and services that it may be appropriate for them to contribute towards. It sets out the basis for a consistent and transparent approach to implementing Policy SD3 infrastructure Delivery and Developer Contributions. It should be noted however that this document serves only as a guide and that each application must be assessed on its own merits. A primary objective of this guidance is to facilitate informed decision making at an early stage by each of those involved in the development process. This allows potential financial implications of any required developer contributions to be factored into development appraisals prior to any major commercial decisions being undertaken.

Whilst it is appreciated that certain levels of mitigation could potentially render a proposed development commercially unviable, and all steps should be taken to ensure that any mitigation is proportionate to the proposal, where a proposed development cannot deliver the level of mitigation to make it acceptable in planning terms, it will not be supported by the Council.

IMAGE: Photograph of a modern public library and archive building with a curved glass frontage, benches, paving, planting and railings.

2 What contributions may be sought towards

The following list (Page 6) exemplifies where developer contributions may be sought, and provides a broad indication of how need will be assessed in each case. The list is in no way exhaustive but it does serve to demonstrate the types of infrastructure toward which contributions would normally be sought. Further detail on the circumstances applicable to each of the areas below can be found within Part 5 Developer contributions of this guidance.

Where contributions will be required toward the above infrastructure, facilities and services, or any other identified upgrade, the developer will be made aware at the earliest possible opportunity in the planning application process and will be provided with a reasoned justification for why the contribution is being sought.

It is important to note that this guidance does is not directly relevant to the provision of water and drainage, electricity and telecoms infrastructure as these services are controlled by public sector bodies and private supply companies and the specific standards, specification and requirements relating to each are out with the control of the Council.

Table 1 – Types of Developer Contributions

Potential Developer Contributions	Basis of Assessment of Potential Need
Strategic Flood Risk Defences	Where the development of a site could/would not otherwise be supported without Strategic Flood Risk Defences being implemented prior to development taking place.
Affordable housing	As set out in the affordable housing supplementary guidance
Transport and Roads	The ability of the existing transportation infrastructure to absorb the effect of the new development without prejudice to traffic safety and traffic flows, including without prejudice to the generality whether it would increase congestion on the existing network and thereby lead to a requirement for new infrastructure for any modes of transport.
Open space, outdoor access and landscaping	The requirement for new or enhanced community open space provision, whether amenity or active; enhancements to the green network; or outdoor access nearby, taking account of the Core Path Plan and any required strategic landscaping.
Education and Library provision	The ability of the existing schools and education facilities and library provision to meet the needs of the community after the development
Recycling facilities and waste management	The capacity of existing Waste Transfer Stations and Waste Collection to absorb the waste outcomes of the development
Arts and Heritage	Whether there would be significant benefit from public art being an intrinsic element of the development proposal, or providing interpretation for Historic Monuments with public access.

IMAGE: Photograph of a coastal settlement and waterfront landscape accompanying the section “What contributions may be sought towards”.

IMAGE: Photograph of a concrete flood-defence structure beside water, with a large wheel-operated sluice or control mechanism.

3 When contributions may be sought

In principle, all applications of any size or type may generate the need for mitigation through developer contributions. However, those development types in Orkney where contributions are likely to be anticipated will include residential development, town centre mixed use development, business and industrial development associated with the Marine Renewables industry, and wind turbines. The Local Development Plan Settlement Statements and any adopted Masterplans or development briefs outline infrastructure constraints in each of the Towns, Villages, and Rural Settlements that are known to the Planning Authority. However, in addition, the development of windfall sites and proposals for non-domestic developments, and applications for multiple house sites out with the settlements may also be required to make developer contributions where appropriate.

Where land is in single private ownership, and a development brief is not a requirement, a planning obligation may be agreed at the Planning in Principle stage to ensure a holistic approach to the development of the entire site is achieved. This may relate directly to the phasing of the development process and will ensure that the landowner fully understands any financial implications, and that the Council appreciates the development economics, of the proposal at an early stage in order that they may be factored into any scheme and are included in the agreement.

All proposals, which are likely to result in the need for new or enhanced infrastructure, facilities or services, should make an appropriate contribution that is proportionate to the scale and anticipated duration, or length of lease, of the proposed development. The Local Development Plan Settlement Statements identify infrastructure upgrade requirements specific to each of the Towns, Villages and Rural Settlements and, in addition to this, Development Briefs and Masterplans will also be used to establish developer contribution requirements on sites of a key and strategic nature.

Requirements for developer contributions do not result exclusively from large scale developments and the cumulative impacts of small and medium scale developments may also necessitate developer contributions.

IMAGE: Photograph of a coastal construction site with excavators, a dump truck, temporary fencing and buildings beside the water.

The key tests to establish whether or not a contribution may be sought are provided within Circular 3/2012 and are outlined below.

Necessary to make the proposed development acceptable in planning terms.
Serve a planning purpose and, where it is possible to identify infrastructure provision requirements in advance, should be relevant to development plans.
Relate to the proposed development either as a direct consequence of the development or arising from the cumulative impact of development in the area.
Fairly and reasonably relate in scale and kind to the proposed development.
Reasonable in all other respects.

Developer contributions will only be sought where it is ascertained that the proposal satisfies each of these key tests.

Development Viability

The Council accepts that there may be circumstances when the application of contributions is not necessary, reasonable and/or may adversely affect the viability of the proposed development. Any exemption, either in whole or in part is at the discretion of the Council. The Council has identified the following circumstances when it would consider exemptions from contributions.

Exemptions relating to the redevelopment of a site where it is effectively demonstrated that the proposal would reduce the present demands on existing infrastructure, facilities and services – contributions to services, infrastructure, and facilities will not normally be sought from redevelopment schemes which result in a net decrease in development.
Concession for derelict and contaminated brownfield sites – the removal of dereliction and contamination is seen as a significant planning benefit. Exceptionally, where it can be demonstrated that the cost of such removal would render the development economically unviable, the council will require independent verification of the site development costs, prior to agreeing any such relaxation.

Economic climate

Depending on the prevailing economic climate, housing markets and availability of development finance, commercial project viability can be significantly affected and as such the effective coordination of development costs with revenues can be critical to project viability. The contribution settlement points(s) within anticipated development programmes will be negotiated, agreed and factored into S. 75 legal agreements in a manner which will assist with facilitating the build out of proposed projects where it can be clearly demonstrated that developer contributions would render the development commercially unviable.

If an applicant can demonstrate to the Council on a confidential ‘open book’ basis that a strict application of policy would render an otherwise commercially viable development unviable, then contribution requests may, where appropriate, be negotiated and varied. In the instance where strategic upgrades had already been carried out, the council would require to agree to waive this requirement. Any variation would be at the discretion of the Council. Where there is a dispute between the Council and the applicant the Council may require the appraisal to be tested by an independent third party, appointed by the Council (and subject to client confidentiality), at the applicants expense, in order to corroborate any commercial non viability.

Where the developer believes that any requested contribution will render the development unviable, applications should be supported by a viability assessment. It is important that these are supported by adequate comparable evidence. For this reason, it is important that these are prepared by a suitably qualified practitioner. This ensures that appropriate assumptions are adopted and judgement formulated in respect of inputs such as yields, rents, sales periods, costs, profit levels, and finance rates to be assumed in the appraisal. This should be carried out by an independent practitioner and a suitably qualified surveyor.

In the event a planning application needs to be reported to committee, any viability assessment would be available to committee members as a private report. The committee will determine the application on the basis of its specific merits and benefits of facilitating its delivery, weighted against the costs to the Council of reducing development contribution liability.

To facilitate the delivery of development, the Council are, in principle, open to phased payments of contributions and other more flexible methods of infrastructure delivery. This should be discussed with the Council at the earliest opportunity.

IMAGE: Photograph of a coastal construction site with earth-moving machinery, piles of soil and buildings in the background.

4 How contributions will be secured

Where a planning permission cannot be granted without some restriction or regulation, and before deciding to seek a planning obligation, the planning authority should consider the options at 4.1 - 4.3 below in sequence.

4.1 Planning Conditions

Planning conditions are generally preferable to a planning or legal obligation, not least as they are likely to save time and money for all concerned. The guidance contained in Circular 4/98: The Use of Conditions in Planning Permissions should be followed.

4.2 Alternative Legal Agreements

For example, an agreement made under a different statute, such as the Local Government (Scotland) Act 1973, the Countryside (Scotland) Act 1967, the Sewerage (Scotland) Act 1968, the Roads (Scotland) Act 1984 etc. A planning obligation is not necessary where the obligations for a landowner or developer may be implemented, for example, by a one-off payment towards the cost of infrastructure provision or the maintenance of open space.

There should be a presumption that this option be used where contributions are being sought for community benefits which, while desirable, do not directly serve a planning purpose. Such benefits might include, for example, provision of infrastructure which is desirable but not essential.

While it would be for a planning authority to satisfy itself that a legal agreement was required, a legal agreement made under other legislative powers would not necessarily be required to meet all the policy tests required of planning obligations.

4.3 Planning Obligations

Planning authorities should be clear that a planning obligation is only necessary where successors in title need to be bound by the required obligation, for example where phased contributions to infrastructure are required.

Planning Obligations are registered as a burden against the title to the application site. Negotiations should start early in the planning process in order to establish the heads of terms of a proposed agreement in advance of the application being determined.

Unilateral Agreements

These are a new aspect of section 75 planning obligations introduced by 2006 Act providing that a person may unilaterally propose and draft a planning obligation in respect of land they own or control. If a developer proposes a unilateral obligation, the Development Management officer would consider this as part of the assessment of the planning application.

All planning obligations require to be fully agreed and legally completed as enforceable to the satisfaction of the Council and their legal advisers before any notice of planning permission can be issued. Unrecorded section 75 obligations involving the payment of monies will require an enforceable unilateral obligation, or the payment of funds, before release of the decision notice.

It should be noted that applicants will be liable for their own and the Council’s legal expenses resulting from securing the planning applications.

It should also be noted that in some circumstances it may be appropriate and necessary to secure the delivery of development contributions in kind through the use of planning conditions dealing with the timing or phasing or commencement of operation of the development in addition to or in substitution for any section 75 or other obligation, and the Council reserves its right to do this in appropriate cases.

4.4 Financial Bonds

In certain situations a developer will be required to demonstrate evidence of a financial bond to be index linked to appropriate timescales to cover the cost of decommissioning or site reinstatement prior to the commencement of development. Such situations would be controlled through the use of suspensive conditions as opposed to legal agreements or planning obligations. Further information can be obtained by contacting Development Management.

IMAGE: Photograph of a stone wall under construction or repair, with rubble in the foreground and a sports field and buildings beyond.

5 Developer contributions

It is anticipated that an overview of indicative costs for various infrastructure, facilities and service upgrades and maintenance will be produced by Orkney Islands Council on an annual basis and this will be made available to potential developers on request.

Where necessary, relevant council services will be consulted in relation to planning applications.

5.1 Strategic Flood Risk Defences

Strategic Flood Risk Defences are location specific to areas of Kirkwall, Stromness and St Margaret’s Hope. Development Briefs, or associated guidance, will be produced to establish developer contribution requirements for these specific projects.

In those cases where the development of strategic flood risk defences are to be undertaken by the Council in order to release land for future development, the total cost of the delivery will be calculated and each subsequent development proposal within the area released will be expected to make a fair and equitable financial contribution toward the defences.

5.2 Affordable Housing

As a general rule, affordable housing should be delivered on site to support the creation of mixed sustainable communities. However, there may be special circumstances where this is not the best solution and either off site provision or a developer contribution (also referred to as a commuted payment) towards the provision of affordable housing will be appropriate.

Developer contribution requirements associated with Affordable Housing are set out in the Affordable Housing Supplementary Guidance.

IMAGE: Photograph of a modern timber-clad affordable housing development with several adjoining units.

5.3 Transport and Roads

Local Transport Strategy

The Local Transport Strategy establishes the Transport framework for Orkney. As the strategy was written to cover the period 2007 – 2010, the document is due to be reviewed once the National Transport Strategy has been updated. The strategy guides policy and investment on transport within Orkney Islands Council and also within partner bodies involved in the delivery of transport infrastructure and transport services in Orkney.

The Local Transport Strategy establishes the Land Use Planning Strategy Intervention, which is intended to ‘ensure that all significant developments are accompanied by a Transport Assessment and a Travel Plan, and seek opportunities to obtain developer contributions to enable improvements to the travel network’.

The LDP contains details of roads infrastructure required to support development of allocated land and further information is provided in specific development briefs and Masterplans. Where this information is not already provided, contributions toward infrastructure improvements may still be required where deemed necessary by local conditions or as a result of a Transport Impact Assessment.

The Orkney Islands Council Roads Development Guide 2006 currently sets out infrastructure requirements that particular developments need to comply with. It should be noted that this document is due to be reviewed during 2013, and that the content of Designing Streets – A Policy Statement for Scotland (2010) is also of particular relevance in the determination of planning applications.

Roads Network and infrastructure

New roads and infrastructure which is required to enable development of land will normally be designed and constructed by the Council, and developer contributions may be required towards these costs by the subsequent owners or occupiers of sites within this wider area. For example at Hatston and Lyness Enterprise Areas.

Where there is an identified impediment to development in the form of capacity, or another deficiency with an adopted road, it may be appropriate for developer contributions to be provided to upgrade a section of the road prior to the occupation or commencement of the development. These will be negotiated on a case by case basis. This may require the provision of new roads, footways, footpaths, cycle tracks, car parking or passing places and associated infrastructure including drainage and street lighting. In some circumstances it may only be necessary to carry out alterations or improvements to the existing infrastructure as previously mentioned.

Developers should engage with the council as Roads Authority at the earliest possible opportunity in order to identify potential works required to the road network and associated infrastructure. These works could be implemented either by the developer carrying out the works themselves in advance of consent being issued or through the Council seeking contributions in the form of a cash payment of bond in order to carry out the work. In the case of third party ownership of any land required for necessary upgrades, all parties may be required to enter a Planning Obligation.

Masterplans and Development Briefs will be used to establish any strategy for amendments to the existing roads network, and for infrastructure upgrades in key strategic locations. These will seek to establish a developer contributions strategy in these areas wherever possible.

Any person, other than a local roads authority, wishing to construct a new road or extend an existing requires construction consent from the local roads authority.

Public transport

Where it is anticipated that a proposed development would result in increased pressure on existing public transport infrastructure, a developer contribution may be required. To assess this, OIC Transportation, who work closely with the public service operators to monitor the usage and projected usage of public transport infrastructure, will be consulted when new development proposals are brought forward. In the case that one developer is responsible for the development of the site, they will be required to pay for the infrastructure upgrade in full.

IMAGE: Photograph of a Stagecoach bus on a road.

Parking

Parking requirements for new developments across the County will vary depending on their location. In the centre of Kirkwall, Stromness and some of the other larger settlements, it may not be possible to deliver parking provision to the standards set out in the Roads Development Guide given the size of some sites. Whilst the requirement to deliver parking is waived within the County’s conservation areas, where in the case of a town centre location it can be clearly demonstrated that it is not possible to deliver the required parking provision, but where the development is otherwise acceptable in planning terms, the requirement for onsite parking may be offset by the delivery of a developer contribution the alternative means below:

Sustainable transport
Traffic management
New or improved public parking facilities within the settlements

Other location specific parking requirements will be established in Development Briefs and Masterplans wherever possible.

IMAGE: Photograph of two cyclists using a paved path through a wooded area.

5.4 Open Space, Outdoor Access and Landscaping

Open space

The Orkney Open Space Audit, which forms part of the Orkney Open Space Strategy will indicate where there is a requirement for open space on a settlement by settlement basis. Development would not normally be supported where it would result in the loss of existing Open Space within the settlements. However, in such instances, a development may be acceptable where Open Space of an equal or greater quality is provided off site within the same settlement and where this is the subject of an appropriate planning obligation.

Where additional or enhanced open space provision is required in order to mitigate the impact of a proposed development, and where this will not be provided on site, the Council may require the developer to provide a financial contribution that will be used to fund the necessary works at an appropriate alternative location.

Outdoor Access

Green networks are identified in the Settlement Statements to improve connectivity between areas of open space, trees and woodland and areas of high biodiversity value to improve the quality of life and sense of place within settlements. The retention of green networks will be required, and developer contributions toward the enhancement of the existing and future green networks, both within an application site and linking into the wider green network, may be required. Details of any upgrades will be agreed with the Council’s Environmental Policy Officer and Access Officer.

Core path plans identify the location of all the core paths and wider access paths in Orkney. Any development proposal which will affect the path network, either by generating a need to divert the path or by intensification of use, will be expected to make contributions towards its diversion, upgrade or extension as appropriate. The specifications of any such works will be agreed with the Council’s Access Officer and reference should be made to the Fieldfare Trust Accessibility Standards as a common starting point.

Landscaping

Strategic landscaping should be designed to ensure that all major developments integrate as fully as possible with their surroundings.

This will be specified in Development Briefs wherever possible. It is expected that strategic landscaping will normally be delivered as part of the development itself and it is therefore unlikely that the Council will seek developer contributions towards its delivery unless the site is within multiple ownership, although in some circumstances off site works may be appropriate and may require a developer contribution.

IMAGE: Photograph of a landscaped public path curving through grass and shrubs.

5.5 Education

If development is proposed in a school catchment area where the Council has no programmed expenditure for the development of the school, new development may not be supportable. To alleviate pressure on schools and other education facilities as a result of enhanced demand and wear and tear from new populations as a result of new housing, contributions could also be appropriate towards the refurbishment of school play areas, renewed or desirable equipment and learning materials for schools, IT, community education i.e. adult literacy programmes at the Learning Link, and Council run youth clubs. Similarly, outwith Council run services, developer contributions may be appropriate for enhancements to the facilities of community schools and halls run by community associations to reflect enhanced use.

5.6 Libraries

Where new development can be expected to place enhanced pressure on library facilities, contributions could be appropriate towards strengthening facilities and services to meet new demand, including adult learning, electronic equipment and staffing.

IMAGE: Photograph of a modern public library and archive building.

5.7 Recycling and Waste Management

Where development would be likely to result in significant new pressure on waste management, contributions could be required towards upgrades to waste transfer station, recycling provision and towards refuse collection associated with increases in housing numbers.

IMAGE: Photograph of a waste transfer or recycling facility with industrial buildings and coloured containers.

5.8 Arts and Heritage

The requirement for Public Art and enrichment of heritage assets will be identified within site-specific Development Briefs or to offset the loss of open space within settlements and a developer contribution mechanism will be established where appropriate.

IMAGE: Photograph of a rectangular stone object or public artwork set on grass.

6 Process for negotiating and securing developer contributions

The process of negotiating and agreeing planning obligations and other legal agreements takes place in tandem with the Development Management procedures followed by the Council in the determination of planning applications.

Where any legal agreement is to be undertaken or unilateral undertaking tendered this will normally be undertaken as part of the planning application process by the Development Management Officer if necessary with legal advice at the council’s sole discretion.

In those cases where the Council is to undertake infrastructure upgrades in advance of site specific works, the total cost of the delivery will be calculated and each subsequent development will be expected to make a fair and equitable contribution prior to the occupation of their development.

It is anticipated that financial negotiations will take place independently of Development Management but concurrently with the planning application process.

IMAGE: Photograph of a coastal construction site with excavators, trucks and earthworks.

7 Good Neighbour Agreements

The provisions in the primary legislation and regulations in respect of Good Neighbour Agreements (GNA) broadly follow a similar approach to those set out for planning obligations, although there are a number of significant differences.

8.1 Parties to a GNA

A GNA is entered into between a person, for example a landowner or developer, and a community body (as opposed to a planning authority). A community body is defined as being either:

the community council for the area in which the land in question (or any part of that land) is situated; or
a body or trust whose members or trustees have a substantial connection to the land in question and whose object or function is to preserve or enhance the amenity of the local area where the land is situated.

In the case of a body or trust, other than a community council, the body must be recognised (and notified) by the planning authority as meeting the criteria set out in the second bullet point above.

There is no provision in the legislation for any person to propose or enter into a unilateral GNA.

8.2 Scope of a GNA

A GNA may govern ‘operations or activities relating to the development or use of land, either permanently or during such period as may be specified in the agreement’. A GNA may make provision, for example, that information is provided to the community body regarding the nature and progress of development on a site. It should be stressed, however, that a GNA may not require any payment of monies.

As with a planning obligation, a GNA (to which an owner of the land is a party) may be registered in the Land Register of Scotland or the General Register of Sasines, making it enforceable against future owners or occupiers of the land.

A GNA should not be viewed as an alternative to a planning obligation. A planning authority should not seek to make it a requirement for the grant of planning permission that a GNA be put in place.

IMAGE: Photograph of a stone-walled cemetery or memorial area, with gravestones and construction materials in the foreground.

8 Further information

Community Benefit

The Council has a separate and independent approach to obtaining payments through contributions in cash or in kind in relation to Community Benefit which lies out with the scope of this document. Such payments may be made in relation to wind energy developments or other applications where there may be a degree of community disruption, for example relating to mineral extraction sites. Further information on Community Benefit can be found on the Council’s website or in documents such as PAN 50 Minerals.