Planning conditions and obligations: two ways to control and mitigate the effects of development

Conditions can be attached to any planning permission and are used to prevent or mitigate unacceptable effects of a development.  

For example, a new housing development may only be considered acceptable if environmental impacts are avoided, reduced or compensated for. If the applicant proposes that tree planting is carried out to replace trees that need to be removed, a condition can be used to secure details of the new trees (such as their species, number and location), when they should be planted and how they should be looked after. Without a condition like this, the applicant may not carry out the required planting in the most effective way, or they may not do it at all.   

Conditions can also be used to ensure further details and information are provided if they are not available at the time of the decision.  For example, an applicant could be required to submit landscaping details or building materials to the planning authority for approval before the development can begin. Enough information should be available to make a good decision, but it can be reasonable to accept that some information will not be known until a later stage. This can still be considered and controlled by the use of conditions. 

Ecological assessments must be carried out before planning permission is granted to identify the likely impacts of the development on wildlife and recommend any necessary measures to avoid, mitigate or compensate for those impacts. A planning condition can then be used to secure the measures proposed to protect wildlife interests. Conditions cannot be used to secure the undertaking of an ecological assessment, as information regarding wildlife impacts must be taken into account in the decision-making process. 

Scottish Government policy states that planning conditions should only be used where they are:  
 

1. Necessary   

2. Relevant to planning  

3. Relevant to the development to be permitted   

4. Enforceable   

5. Precise   

6. Reasonable in all other respects  

Reasons for using each condition must be provided by the decision maker. It is very important that conditions are worded in a certain way so it is clear what is being asked for. This enables the planning authority to take appropriate action if the applicant doesn’t do what the condition says. This can sometimes make the wording of conditions sound a bit strange! 

Any proposed condition that fails to meet one of the six tests should not be used, even if the applicant suggests or agrees to it, or it is suggested by the members of a planning committee or an interested party. 

Statutory consultees (such as NatureScot, Scottish Environment Protection Agency (SEPA) and Historic Environment Scotland) and anyone else commenting on a planning application, can suggest draft conditions or issues that should be controlled by conditions. The exact wording doesn’t need to be provided. The planning authority will then decide whether to use such conditions.  

Some planning conditions require the applicant to do certain things or submit further details before the development can be carried out. For example, details of a landscaping scheme for a housing development might need to be submitted for the approval of the planning authority before the development can begin. This process is known as the ‘discharge’ of conditions. 

In most cases, the planning authority must notify the applicant of its decision to discharge a condition or not within 8 weeks, or a longer period as agreed between the two parties.   

If the submitted details are considered acceptable, the planning authority will approve the discharge of conditions application in writing and the applicant can then carry out the development in accordance with their approved details.   

Applicants can apply to remove or vary a condition attached to a planning permission under Section 42 of the Town and Country Planning (Scotland) Act 1997 (as amended). These applications are sometimes called ‘Section 42 applications’ and you might see this on planning authority websites. 

The planning authority can either: 
 

• Refuse the application if they consider that the development should retain the same conditions  

• Grant the application and remove or vary the condition(s) as applied for  

• Grant the application and impose new conditions as it considers appropriate, provided that they don’t materially change the proposal 
   

Whatever the outcome of the Section 42 application, the original planning permission and its conditions will continue to exist and will still have effect until any new Section 42 permission is granted and implemented. A new Section 42 permission sits alongside the original one, so it is up to the applicant to decide which permission to implement.    

Planning obligations are legally binding obligations (requirements) that can be used to make a development acceptable in planning terms. Planning obligations are secured in an agreement entered into under Section 75 of the Town and Country Planning Act (Scotland) 1997 (as amended) generally between the applicant and the planning authority, but can include others such as landowners. They are sometimes called planning agreements or Section 75 agreements. Planning obligations run with the land, so any future owners of the land are legally bound by them.   

Planning obligations are agreed to by the applicant and are used to secure a variety of positive obligations that can’t be secured by condition. These can include affordable housing, green space and financial contributions towards the provision of measures to mitigate the negative impacts of a development. For example, an applicant could sign up to a woodland management plan to help offset the impact of a development proposal for new woodland holiday lodges. 

Planning obligations can be used to secure off-site mitigation, whereas planning conditions can only be imposed on land within the application site boundary, or land which is in the applicant’s control.    

More information on planning obligations can be found in Scottish Government circular 3/2012. 

Planning obligations can also be secured via a unilateral undertaking, which is a simplified version of a Section 75 agreement that is quicker and more straightforward to complete. A unilateral undertaking is prepared by an applicant (and anyone else with a legal interest in the land) in situations where the planning authority will not agree to the planning obligations proposed. 

A unilateral undertaking is often used by an applicant to propose planning obligations at a planning appeal, where the planning authority refused the planning application and was therefore unwilling to enter into a Section 75 agreement.  

Planning obligations should only be used where it is not possible to address impacts by using a planning condition. A planning obligation must meet all the following tests:  
 

1. Necessary to make the development acceptable in planning terms 

2. Serve a planning purpose  

3. Related to the proposed development (on its own or its cumulative impact with other developments) 

4. Fairly and reasonably related in scale and kind to the proposed development 

5. Reasonable in all other respects 

  
The planning authority must secure all necessary planning obligations via a Section 75 agreement or undertaking before issuing a planning permission.   

An applicant, or the future owner/occupier of the land, can apply to the planning authority to have an obligation either modified or discharged (meaning it will cease to have effect). If the application is refused, they can appeal to Scottish Ministers. 

A planning obligation is enforceable against future owners or occupiers of the land; this is done through a legal process. The legislation allows, in certain circumstances, for planning authorities to carry out works and recover the costs of doing so.