However, it is difficult to detail the details of planning obligations. The new section 75 also defines (see section 75, paragraph 3), which may relate to a planning obligation, including the payment of a specific amount or periodic amounts. Although more specific, this does not seem to indicate any real change. Understanding the impact of the agreements described in Section 75 and ensuring that they are properly developed may be essential for the viability of a project. Until now, there has been no provision for a landowner to amend a Section 75 agreement other than in agreement with the planning authority. Section 75B of the 2006 Act changed this situation and these amendments came into effect. As a result, a landowner who has sought the approval of a planning authority to agree to a Section 75 planning agreement or obligation can refer the matter to Scottish ministers if the planning authority is not prepared to do so. As a general rule, the agreements described in Section 75 are either entered into the Sasine Register of the Land Registry (but should not be concluded). However, if they are registered (and are generally registered), the Section 75 agreement (or planning obligation) applies to the owner and rights holders. It is interesting to note that there is a specific subsection that now includes heretical creditors held as « owners » with respect to implementation. The development of the law is such that the person entering into the contract in accordance with Section 75 may be held liable for the obligations under this agreement, regardless of the transfer of the property (see section 75C). When developing a planning obligation in the future, it will be necessary to ensure that the document itself takes care of current commitments.
A proponent has the option of modifying or fulfilling a planning obligation with the planning authority if it is considered no longer in accordance with the above policy tests. Of course, it will be interesting to see how Scottish ministers will deal with these applications in the future. It seems unlikely that an agreement or planning obligation within the meaning of Section 75, which contains essential obligations, will vary slightly if: (a) a building permit was recently issued and (b) the terms of the Section 75 agreement or the planning obligation for that grant were essential. However, the impact of the current economic climate is a subject that can be particularly problematic. The Chief Planner (apparently at the request of the Cabinet Secretary) recently wrote to local authorities regarding affordable housing and noted that, in the current economic climate, it may not be appropriate to insist on a provision at a level that has applied until now, particularly where there is no way to support the development of this affordable housing.