• Good Neighbour Agreements, which are to be introduced under the 2006 Planning Act.
• A recent decision of the Court of Session which grappled with a tricky question about an exception to the rule that rights of access expire if unused for 20 years.
• The latest developments in the Planning Gain Supplement saga.

In addition, we include a number of other relevant news items.

If you wish to discuss any of the items in this edition or require advice on strategic land issues please contact either Bruce Anderson: DD: 0131 718 2399 e: b.anderson@bellscott.co.uk or Caroline Docherty: DD: 0131 718 2383 e: c.docherty@bellscott.co.uk

Implications of the Planning etc. (Scotland) Act 2006

Good Neighbour Agreements

All show and no substance?

The Planning etc. (Scotland) Act 2006 has introduced the concept of Good Neighbour Agreements to Scotland. For the full text of the provisions click here.

Caroline Docherty, Partner in our Strategic Land Team, comments:

Good Neighbour Agreements (GNAs) are a “new thing” – introduced by the Planning etc. (Scotland) Act 2006. But are they a “good thing”? Like so much else in modern day Britain, GNAs originated in the USA. Just as with the Big Mac and Seinfeld, the view seems to have been that we should be quick to import and embrace this American invention. But, will GNAs be more akin to the concept of therapy for your canine pet? Commonplace on the other side of the Atlantic, but over here seen as being of no use, or even harmful?

GNAs are to be introduced by secondary legislation, and regulations are currently scheduled for April 2009, after a year long consultation process. It will be as well for the industry to be prepared to feed into that process, if the worst problems of GNAs are to be avoided.

GNAs are introduced by means of a new Section 75D of the 1997 Act – and therefore can be viewed as a new type of Section 75 Agreement. They “run with the land” in the same way, but there are two crucial differences:

• they are entered into not with the Planning Authority, but with a “community body.” A community body is either the Community Council for an area in which any part of the land to be governed by the Agreement is situated, or a body or trust which the Planning Authority considers has a “substantial connection” to the land and the object of which is to “preserve or enhance the amenity of the neighbourhood.”
  
  
• they “govern operations or activities related to the development or use of land” which is different from a Section 75 Agreement, which “restricts or regulates the development or use of land.”

It is the wording “govern operations or activities” coupled with the “Good Neighbour” moniker which alerts us to the intended use of these Agreements. It is clear from the consultation process which preceded the new Act that support for the concept was strong from SEPA, Friends of the Earth and other environmental lobby groups. They saw them as a means of addressing the social and environmental impacts a company operating in a “dirty” industry can have on the neighbourhood within which its operation or factory lies. The examples given of conditions negotiated in the USA are:

• Community access to information.
• The right to inspect the facility.
• Accident preparedness.
• Pollution prevention.
• Employment opportunities for locals.
• Local economic needs, e.g. paying for a community facility.
• Concessions for locals.

One voluntary Agreement has been negotiated in Scotland and is held up as an example. It relates to an “energy from waste” plant in Dundee.

All of this is all well and good. It might be argued that a GNA adds nothing to the existing law. There would be nothing to stop a company entering into such an agreement at present (as the voluntary Agreement in Dundee illustrates), but it is difficult to argue against the general concept of regulating polluting industries and “empowering” local people. However, the legislation is drafted in such a way that a number of issues arise, which could potentially cause real problems:

• Negotiation. Negotiation with a committee can be virtually impossible, and real problems can be foreseen in trying to reach consensus in anything like a reasonable timescale. Developers currently feel real frustration at delays caused by the time it can take to negotiate and agree a Section 75 Agreement. One can only guess at the timescales involved in negotiating a GNA.
  
  
• Enforcement. Even if consensus can be reached with the community body, problems may well arise when it comes to enforcement. The sensible company will look for there to be a “reasonableness” test in any Agreement entered into with a community body, but what is “reasonable” for such a body? And what is to be the role of the Planning Authority in enforcement? The Act provides for none, nor indeed any remedy for breach. New style Section 75 Agreements will allow local authorities the right to enter the ground, undertake work not completed, and recover costs incurred. GNAs do not give community bodies the same rights. Remedies will have to be drafted into GNAs, making them complex documents to draft and negotiate. What legal assistance is to be given to community bodies in this process? It might be felt that breaches of planning or environmental legislation are better left to be dealt with by the Planning Authority, using current statutory powers – in which case – what is the point of a GNA?

• Scope. As mentioned, GNAs need only “govern operations or activities”, and this is limited only by a provision that they cannot require the payment of money. The real danger has to be that Planning Authorities, some of which have already spread the use of “liaison committees” from open cast coal sites to large scale housing developments (requiring the housebuilder to hold regular liaison committee meetings with local people) are indiscriminate in their use and see them as having a scope beyond the intended control of a “dirty” use. Liaison committees do not have the same powers. Their powers are contained in a Section 75 Agreement, negotiated with the Planning Authority, and can thus be limited, and they are negotiated with the Authority, and not a community body. Any move towards planning conditions requiring a GNA for large scale, but “non dirty” uses must be firmly resisted, as this would single-handedly reverse any strategies being employed elsewhere in the system to speed up the planning process.

So does it look like GNAs are more dog therapy than Big Mac? It seems so, and the development industry must do all it can during the consultation process to ensure that GNAs are not given a purpose which was never intended for them.

Recent Decision

Abandonment of access rights

"We didn’t abandon that access right – we just haven’t used it for 20 years…"

Peart owned an area of woodland while Legge owned neighbouring ground. Legge’s title contained a deed from 1981 that gave Legge a right of access over Peart’s woodland by an existing lane. The lane terminated at the boundary wall between the two properties and the access right provided that Legge could knock through the wall to take access. Over 20 years passed before Legge sought to breach the wall and exercise the access right.

Peart argued that because the right had not been exercised for 20 years it had “prescribed” i.e. been abandoned and was no longer enforceable. Legge argued that the position was different in this case, largely because access could not be taken until the wall was broken through.

The law on abandonment of rights is dealt with in the Prescription and Limitation (Scotland) Act 1973. In interpreting the Act, the Court decided that, while rights that remain unused for 20 years would, normally, be considered as abandoned, the wording of a particular right could indicate an intention that it should continue whether it was exercised or not. In such cases, the right would not be treated as abandoned just because it was not used for 20 years.

However, having explained the law, the Court decided that the wording in Legge’s deed was not sufficient to show that the right was intended to continue. The fact that the right could not be exercised before a wall had been penetrated was not enough so the 20 year rule applied in the normal way.

Neil Fraser, Senior Solicitor in our Strategic Land Team, comments:

“Prescription” can be a useful tool for landowners - and developers who take title from them. Often, the title deeds that set out the rights and obligations of a property owner contain historic obligations to neighbours that are no longer relevant. The result is that it is not always possible for the landowner to know from the deeds whether a particular right might still affect his land. That uncertainty can present difficulties for an owner who wishes to carry out some operation on the land that would prevent the neighbour exercising the right (e.g. building houses over a historic access route).

The purpose of the 1973 Act is to add clarity by providing that rights that have not been exercised for 20 years can be considered to be abandoned and are no longer enforceable. However, some rights cannot be lost through absence of use e.g. it would clearly be unjust for a full right of ownership to be lost simply because an owner did not use the property. The question here was whether or not the access right in the 1981 deed fell into the category of rights that the 1973 Act says cannot be abandoned.

The wording of the 1973 Act is that rights “res merae facultatis” are not abandoned by not being used. The public tends to assume, perhaps sometimes generously, that lawyers know what such Latin phrases mean, and even lawyers sometimes assume that other lawyers understand the meanings. Often, there is a settled and well known understanding - many of the Latin phrases (from which good lawyers will attempt to spare their clients) are useful and have a clear, specific and judicially recognised meaning that cannot be neatly captured by an English rendition. However, this case represents an instance where the Latin phrase used in the Act was so obscure that nobody was actually sure what it meant. Unhelpfully, the Act itself does not define what the term means.

Ultimately, the Court was called upon to consider the historic authorities to explain the meaning of the Latin term, with the consequences described above.

While this is undoubtedly a helpful clarification of the 1973 Act, it is only clear so far as it goes. It has been decided that rights intended to come into effect at a future date are rights that “the possessor can choose to exercise or not” and cannot be abandoned. Questions remain as to what other rights might fall into that category, what wording might be needed for the right to qualify as such, the extent to which rights that arise as a matter of law (rather than from the titles) might qualify, and what happens when such a right is exercised but then subsequently left unused for a long period.

So, while the case shows that the courts will not lightly agree exceptions to the 20 year rule, landowners and developers should remain cautious about dismissing historic rights affecting their land as being “abandoned”. At the least, it should be considered whether a neighbour might take issue with an operation on the land that would interfere with what could appear to be an abandoned right.

Barry Peart and Another v Symon B Legge, 6 September 2007
Extra Division, Inner House, Court of Session [2007] CSIH 70 XA12/07

The full text of the decision is available here.

News

Planning Gain Supplement dies
In the last issue of Strategic Land Update we reported on Gordon Brown’s announcement that he would look at alternatives to PGS, and Caroline Docherty commented on two of those alternatives – roof tax and the continued use of Planning Agreements. Last week’s announcement by Alastair Darling that the proposed PGS is to be dropped has been seen as a genuine success for those within the industry who devoted so much time to lobbying against it. However, it has to be remembered that while in England and Wales there is to be a new statutory planning charge to fund infrastructure, in Scotland the issue of that funding will be left for the Scottish Government and local authorities to thrash out. We therefore seem set for a further period of uncertainty. The “do nothing” approach seems a definite possibility, with the Scottish Government taking the view that the current system of funding infrastructure via negotiated Planning Agreements does actually result in that infrastructure being delivered. While the status quo may seem attractive after the threat of PGS, we need to pinch ourselves and remember the delays, uncertainty and lack of transparency. And those lobbyists will not be able to rest on their laurels. After a short break they will once again have to take up the cudgels on behalf of the development industry if we are not to be left with the worst of all worlds, in the form of a two tier approach – negotiated Planning Agreements coupled with some form of fixed charge!

Options for and alternatives to the Planning Gain Supplement (PGS) - The Scottish Government's view
The Scottish Government's views on the options for modifying or replacing the proposed planning gain supplement, as set out in the Department for Communities and Local Government's Green Paper, Homes for the Future.

Scottish Government, 12.10.07
http://www.scotland.gov.uk/Resource/Doc/199978/0053424.pdf

Best practice in establishing Urban Regeneration Companies in Scotland
This report looks at 'best practice' in the set up and early operation of URCs in Scotland. It looks at what works well - from governance structures through to structures for community involvement and also outlines some potential pitfalls for newer or even future URCs to avoid.

Scottish Government, 21.9.07
http://www.scotland.gov.uk/Resource/Doc/198330/0053032.pdf

National Planning Framework: Newsletter No.3, Autumn 2007
Contents: the purpose of National Developments; the criteria; potential National Developments and next steps.

Scottish Government, Autumn 2007
http://www.scotland.gov.uk/Resource/Doc/198964/0053181.pdf

Preparation of Second National Planning Framework (NPF2): Participation Statement
The second NPF will set out the Scottish Government's strategic development priorities. It will play a key role in ensuring the effective co-ordination of policies with a spatial dimension, integrating and aligning strategic investment priorities and indicating where inter-regional choices need to be made. It will set out strategic aspirations as a key means of delivering projects and proposals of national significance.

Scottish Government, October 2007
http://www.scotland.gov.uk/Resource/Doc/198960/0053180.pdf

Planning and Sustainable Development draft consultation
Consultation responses.

Scottish Government, 12.10.07
http://www.scotland.gov.uk/Publications/2007/10/12145909/0

Developing the new Planning Performance Assessment Framework
Consultation responses.

Scottish Government, 16.10.07
http://www.scotland.gov.uk/Publications/2007/10/16121621/0