How Does England and Scotland Differ in Respect to Planning Obligations?

By Nige on November 12, 2024 at 10:37 am
Type: Post Category: Freehold
Tags: S106 | S75 | Section 106 | Section 75

In the context of planning obligations like Section 106 (S106) agreements in England, Scotland has a different legal framework and uses Section 75 (S75) agreements instead.

While both types of agreements serve a similar purpose—to secure developer contributions towards infrastructure, affordable housing, and other community benefits as part of planning permission, their legal structures, processes, and specific requirements differ.

Quick Links

• Key Differences
• Summary
• Why is this Important to Clients of Residents First?

Key Differences

What are the key differences between the S106 in England and the S75 in Scotland?

1. Legal Basis:
   • England: S106 agreements are based on Section 106 of the Town and Country Planning Act 1990. These agreements are legally binding contracts between local authorities and developers, outlining contributions or obligations developers must meet for planning permission.
   • Scotland: S75 agreements are based on Section 75 of the Town and Country Planning (Scotland) Act 1997. Similar to S106, S75 agreements are binding legal agreements between planning authorities and developers.
2. Purpose and Scope:
   • Both S106 and S75 agreements serve to mitigate the impact of development on local infrastructure, affordable housing, and community services. However, Scotland has a more centralized approach to determining contributions.
   • S75 agreements often emphasize regional planning needs, and planning authorities in Scotland are required to consider Scottish Government guidance, which shapes how planning obligations should be applied.
3. Affordable Housing and Developer Contributions:
   • Affordable Housing: Both S106 and S75 agreements are commonly used to secure affordable housing as part of a development, but Scotland generally has a higher threshold for affordable housing contributions, often setting requirements at 25% or more of a development’s units.
   • Developer Contributions: In Scotland, developer contributions are calculated based on standardized guidance provided by the Scottish Government, leading to more consistent contribution expectations across regions. In England, local authorities have more flexibility, which can lead to greater variability in contributions.
4. Viability and Flexibility:
   • England: S106 agreements often include a viability assessment process, allowing developers to negotiate down contributions if they can demonstrate that full compliance would make the project financially unviable.
   • Scotland: While developers in Scotland can also challenge contributions based on viability, the Scottish Government encourages greater transparency and has set more defined guidelines, meaning viability negotiations can sometimes be less flexible compared to England.
5. Modifications and Enforcement:
   • Modifications: Both S106 and S75 agreements allow for modification, but the processes differ:
     • England: Modifications to S106 agreements can be sought if the agreement is more than five years old, with developers able to appeal if an agreement cannot be modified.
     • Scotland: Modifications to S75 agreements require formal applications to the local authority, and if refused, developers can appeal to the Scottish Ministers. This centralized appeal process allows for a more uniform approach to modifications across Scotland.
   • Enforcement: Local authorities in both countries can enforce the terms of planning agreements, but Scotland’s planning authorities have a slightly more streamlined process, allowing local councils and the Scottish Government to coordinate enforcement more directly.
6. Planning Obligations and Appeals:
   • In Scotland, appeals related to S75 agreements can be made directly to Scottish Ministers, offering a centralized appeal process that contrasts with England’s approach, where appeals go through the Planning Inspectorate.
   • Scottish Ministers often issue guidance that standardizes certain aspects of S75 agreements, such as the proportion of affordable housing. This centralized guidance leads to greater consistency across Scotland, whereas S106 agreements in England can vary significantly between local authorities.

Summary

• England uses S106 agreements under the Town and Country Planning Act 1990, while Scotland uses S75 agreements under the Town and Country Planning (Scotland) Act 1997.
• Scotland has a more centralized approach with guidance from the Scottish Government, leading to consistent requirements for developer contributions and affordable housing across the country.
• Viability negotiations in Scotland tend to be less flexible compared to England, as contributions are guided more strictly by Scottish Government policies.
• Appeals for S75 agreements go to Scottish Ministers, allowing for more uniformity across Scotland, while S106 agreement appeals go through the Planning Inspectorate in England, leading to regional variations.

In essence, Scotland’s approach with S75 agreements is more uniform and guided by centralized government policies, while England’s S106 agreements provide more local flexibility, often resulting in variations in planning obligations across different areas.

Why is this Important to Clients of Residents First?

Our aim is to support residents across the UK, so we need to recognise there are differences in the way residential property is managed, depending on where in the UK our residents are based.

We may not be experts in all areas of the UK, but we are building our understanding and our experience with every engagement we take on. We work with local partners where specific expertise is required or a local presence is essential.

Residents can be assured that our focus is always on delivering the best possible outcome, wherever they are based.