Technical Notes 2025, Issue 162 - Proposed Council Response to the Scottish Government consultation on Planning Obligations and Good Neighbour Agreements: draft guidance

• The purpose of this Technical Note is to advise Members of a current Scottish Government consultation on Planning Obligations and Good Neighbour Agreements, and to invite any comments for inclusion in a response to the Directorate for Planning, Architecture and Regeneration. The consultation closes on 30 September 2025. 

Background

• Planning obligations are a mechanism which can be used to make developments acceptable by ensuring that they comply with planning policy. They are often used to facilitate the delivery of infrastructure which is needed alongside planned new development, and to ensure the provision of affordable housing.
• Good Neighbour Agreements are an instrument where a landowner or developer can enter into a contract with a community body and where the landowner/ developer is required to regularly liaise with the community body, keep them updated on any work related to development site and accord with any other provisions provided in the agreement.
• The guidance, when finalised, will replace Planning Circular 3/2012: Planning Obligations and Good Neighbour Agreements. The government states that the guidance needs to be updated to reflect the new development planning system and developments in law and practice since the publication of the Circular, and to address other issues that have arisen in that time.
• The ambition is that the new guidance will provide greater certainty for all parties. Through the preparation of development plans, planning authorities are expected to set out clear policies for the use of planning obligations and methods for calculating developer contributions. This front-loaded approach provides developers with earlier certainty around what will be required of them, and clear justification helps give local authorities and other infrastructure providers confidence in receiving the contributions set out. This supports the plan-led and delivery-focused system.

Key changes

• The draft guidance re-uses substantial amounts of the previous text from Circular 3/2012, but provides additional detail on some technical matters and has been rearranged to make the structure of the document clearer. The main changes are as follows:
  • Setting out how developer contributions policies should be incorporated within new-style development plans, including the need to have regard to:
    • The removal of Supplementary Planning Guidance following the enactment of the Planning (Scotland) Act 2019
    • The need to take an ‘Infrastructure First’ approach in accordance with National Planning Framework 4
    • The need to address the planned phasing, funding, costs and delivery of necessary infrastructure through the Delivery Programme. 
  • Clarifying how to provide clear justification for contributions addressing cumulative impacts and the use of ‘contribution zones.’
  • An increasing focus on seeking contributions towards affordable housing.
  • Emphasising the importance of development viability in the development of policies and negotiation of individual obligations.
  • Reviewing guidance on the policy tests for assessing the need for obligations and how they relate to planning decisions.
  • Setting out some considerations around the content of legal agreements. 
• In terms of development planning, the new guidance elaborates on the original version by providing more detail on the implications of the Planning (Scotland) Act 2019 and NPF4 on preparing Local Development Plans. Specifically, it highlights the importance of an ‘infrastructure first’ approach and the delivery of sufficient affordable homes. LDPs and accompanying Delivery Programmes will be expected to set out where additional capacity will be needed, when and in what form it will be delivered, expectations of how much it will cost, and which developments contributions will be sought from.
• Following submission of the Evidence Report for Local Development Plan 3 to Ministers for Gate Check, officers are currently undertaking early work on the proposed plan. Preparation of the proposed plan will take the provisions of the draft Guidance, and any subsequent revised/ finalised guidance, into account. Matters relating to infrastructure requirements and developer contributions will be reported to Local Development Plan Working Party and Council/ Place Neighbourhood and Corporate Assets as required.
• In relation to development management, detailed guidance is provided on the process of agreeing obligations, required content, registration and publication/ monitoring arrangements. Furthermore, there is additional guidance on the enforcement of operations required by a planning obligation and unilateral obligations. 
• Members should note that a joint Ministerial letter sent to authorities on 02 September 2025 addressing the housing emergency, states that the government wants to see ‘an emergency-led approach taken to decision making across local development plan preparation and the determination of applications’. This seeks to increase the delivery of all tenures of new housing and should be taken into account in the use and negotiation of developer contributions.
• Members should also note that the Scottish Government announced in November 2024 that work to bring forward an infrastructure levy as part of ongoing reforms to the planning system had been paused. The Planning and the Housing Emergency: Delivery Plan published on 12 November 2024 stated that ‘whilst infrastructure has a critical role to play in supporting placemaking, early engagement to inform the development of regulations suggests that the levy could add significant complexity to the system whilst offering limited benefits in terms of infrastructure funding and delivery, which could further undermine investor confidence at this time.’
• The infrastructure levy proposed in the Planning (Scotland) Act 2019 was not intended to replace the current approach and the need for planning obligations, and would have provided an additional instrument for the delivery of necessary infrastructure. The circumstances in which the levy would be used, and the benefits of doing so, would be set out in secondary regulations. It should be noted that the Act includes a ‘sunset clause’ on the ability for the government to enact the levy and therefore it is looking increasingly likely that the government will not bring forward regulations by the 25 July 2026 expiry date. As such, it is most likely that future development plans and decisions on planning applications will continue to rely on planning obligations as the sole method for addressing the impact of development (where a financial contribution is required).  

East Dunbartonshire Response 

• Overall, the additional guidance set out in the revised document is welcomed, particularly the additional detail relating to development planning and development management. It is considered that this will result in greater clarity for both the planning authority and applicants, with regard to the development and delivery of planning obligations. As such, it is intended that a supportive response is submitted as part of this consultation.
• In addition to offering general support for the guidance it is recommended that the following detailed comments are made:
• Paragraph 30 states that ‘The timeframe for building infrastructure should be taken into account. It may be difficult to show that facilities are directly related to the development, if they are not provided until many years after it is completed’. Whilst the delivery of some infrastructure is relatively straightforward, other requirements can be more complex to deliver and/or are a result of cumulative development. It should also be noted that the impacts of development may not be felt in the short-term after the development is delivered, for example secondary school rolls and capacity.
• The Council is concerned that ‘many years’ is an unspecified amount of time which is open to interpretation and challenge. It is considered that the five policy tests provide sufficient safeguarding to ensure that contributions are reasonable and related to the development. Furthermore, the Council considers that it is a matter individual situations and negotiations to determine the suitability and reasonableness of the timescales and programme for delivering the infrastructure.
• Paragraph 33 states that ‘it is relevant to note that what is considered an unviable development site for one developer, may be viable for a different developer with different proposals and expectations.’ This statement is welcomed as it re-emphasises the plan led approach and the need to consider development viability against the requirements of the development plan in the round.
• The Council welcomes the additional information regarding viability and impact assessments provided in Paragraphs 36 & 37.
• The Council notes that the following text provided in Circular 3/2012 ‘It is not possible to indicate all circumstances in which planning obligations are appropriate’ has been removed. Whilst the draft guidance continues to acknowledge that some unforeseen circumstances may still occur, there is a change in tone reflecting the Infrastructure First approach required by NPF4. The Council agrees that the need for planning obligations should be set out in the LDP where at all possible, however this must be seen against the dynamic nature of the demand for services and impacts upon infrastructure.
• Paragraph 71 states that ‘where possible, planning obligations should include a clause enabling them to apply to future consents which are for substantially the same development, without the need to negotiate a new agreement or a variation to the original’. The Council considers that this is both unnecessary – as it is standard practice to only renegotiate an obligation where the development has significantly changed – and is in effect ‘back-to-front’ as the decision on whether or not a development is substantially the same can only be taken at the point in which the detail of the follow-up proposal is known.
• Paragraph 99 states that ‘if a payment has been made as a contribution to the provision of infrastructure in accordance with a planning obligation, and the obligation is discharged (or modified to remove the requirement for that payment) at any time before the money is drawn down, then the money must be returned to the person who paid it.’ As stated above, demand for services and the impacts of new development upon infrastructure are dynamic, and all authorities and infrastructure providers have their own internal processes for managing contributions. Therefore the statement in paragraph 99 could lead to intermittent periods where contributions are required to be returned despite longer-term infrastructure capacity issues exacerbated or created by new development. For example, in the case of education capacity there can be isolated years where a school roll temporarily drops despite a longer term pattern of increasing rolls and capacity issues.
• The inclusion of an Annex setting out the definition of “Infrastructure First” from NPF4 is considered to be helpful in making the connection with Policy 18 of NPF4.
• It is proposed that the response does not provide any comments with regards to Good Neighbour Agreements(GNA’s). This is because there are no real changes to the guidance regarding the use of GNA’s, with the exception of some re-ordering of the text, and as this is an optional instrument that has had very little uptake by developers.
• Members are invited to consider the proposed response to the draft Guidance and make comments before it is submitted to the Scottish Government’s Directorate for Planning, Architecture and Regeneration. Comments should be made by 26 September 2025 and should be sent to richard.todd@eastdunbarton.gov.uk.