Section 75 agreements in Scotland and how they differ

This article is about Scotland, and the framework it describes is Scottish. A section 75 agreement Scotland uses to secure planning obligations is made under section 75 of the Town and Country Planning (Scotland) Act 1997, and while it does the same job as a section 106 agreement in England, the statutory machinery around it differs in ways that matter to programme and to land value.

The two differences a developer feels first are the statutory route to modify or discharge an obligation once it is five years old, and the absence of any Community Infrastructure Levy in Scotland, which pushes almost all contributions into the agreement itself.

The statutory basis for planning obligations in Scotland

Section 75 as originally drafted required an agreement between the planning authority and a person with an interest in the land. The Planning etc. (Scotland) Act 2006 rewrote it, and the current position allows a planning obligation to be entered into unilaterally as well as by agreement, which is useful where a third party with a title interest will not engage.

An obligation can restrict or regulate the development or use of land, require operations or activities to be carried out, require the land to be used in a specified way, or require payments to the authority, either as a lump sum or periodically.

It binds the land, not just the signatory. Once registered, successors in title are bound, and that is the point of using an obligation rather than a contract.

Tests applied to Scottish contributions

Scottish Government guidance on planning obligations sets out the tests an authority should apply before seeking one. An obligation should be necessary to make the proposed development acceptable in planning terms, serve a planning purpose, relate to the proposed development, fairly and reasonably relate in scale and kind to the development, and be reasonable in all other respects.

The English position is narrower in form. There, regulation 122 of the Community Infrastructure Levy Regulations 2010 makes three of those tests statutory, so an obligation failing any of them cannot lawfully be a reason to grant permission. In Scotland the equivalent tests sit in policy rather than in a statutory instrument, which gives authorities more room and gives applicants more to argue about.

In practice this means the negotiation looks different. A Scottish authority asking for a contribution will point to a policy in the local development plan and to supplementary guidance setting out a formula. Your response has to engage with the formula and with the five tests rather than simply asserting that a contribution fails a statutory test.

Drafting and registering the agreement

The agreement is a Scottish deed, prepared by Scottish solicitors, and it is registered in the Land Register of Scotland. Registration is what makes it enforceable against successors, so the permission is normally issued only once registration is confirmed.

Three practical points repay attention at drafting stage.

1. Define the trigger events precisely. Payment when work starts on site, on completion of a numbered plot, or on first occupation are all common, and a vague trigger such as the start of development can capture site clearance you intended to carry out early.
2. Deal with the lender. A standard security holder usually needs to be a party or to grant consent, otherwise the obligation can be defeated on enforcement of the security.
3. Build in a mechanism for phasing and for the release of individual plots, because a purchaser's solicitor will require a discharge or a non-enforcement letter for each house sale.

Where affordable housing is being secured, the drafting has to match the tenure and delivery mechanism set out in the local development plan policy, and the affordable housing statement submitted with the application should describe the same arrangement the deed will carry.

Modification and discharge after five years

This is the provision with no direct English equivalent. Sections 75A and 75B of the 1997 Act, inserted by the 2006 Act, let a person against whom an obligation is enforceable apply to the planning authority to modify or discharge it, provided the obligation is at least five years old.

The authority can discharge the obligation, modify it as applied for, or refuse. If it fails to determine the application within the prescribed period, or refuses, there is a right of appeal to Scottish Ministers.

In England, section 106A of the Town and Country Planning Act 1990 provides a comparable application route after five years, with an appeal to the Secretary of State, but the English regime has been overlaid by separate time-limited mechanisms for affordable housing viability that came and went. The Scottish route has stayed stable, and Scottish practitioners use it more routinely as a result.

The five-year clock runs from the date the obligation was entered into, not from the date of the permission or of the start of works. Check that date before assuming the route is open.

Appeals and enforcement

An appeal against a refusal to modify or discharge goes to Scottish Ministers and is determined by a reporter, in the same way as a planning appeal. The test on appeal is whether the obligation continues to serve a useful purpose, or whether it would continue to serve that purpose equally well if modified.

Enforcement runs the other way. Section 75C gives the authority power to enter the land, carry out operations required by the obligation and recover its expenses from the person in breach, alongside the ordinary remedy of interdict. That self-help power has no close English parallel and is worth knowing about when advising a client who is minded to ignore a landscaping obligation.

Contribution policies in Scottish local plans

National Planning Framework 4 forms part of the development plan in Scotland, sitting alongside the local development plan, and contribution policies are set locally beneath it. Education, transport, affordable housing, open space and healthcare are the usual heads of terms.

There is no Community Infrastructure Levy in Scotland. The Planning (Scotland) Act 2019 contains powers to introduce an infrastructure levy by regulations, and as at 17 September 2026 the position should be verified against the current legislation before you rely on it. Until any such levy exists, section 75 carries the whole load, which is why Scottish agreements tend to be longer and more formulaic than their English counterparts.

Model the contributions in the appraisal at the right stage. Where the numbers do not work, a viability assessment prepared to recognised professional standards is the evidence an authority will expect, and it needs to reflect Scottish policy and Scottish costs rather than an English template.

Practical differences from a section 106 agreement

There is one further Scottish feature worth knowing. Section 75D allows a good neighbour agreement between a developer and a community body, registered in the same way, which regulates the use of the land for the community body's benefit. It is used rarely, but it can be a route to settling a local objection without the authority being party to the deal.

And if you are running a project on both sides of the border, do not let one set of heads of terms be redrafted from the other. The tests, the timing and the registration mechanics are different enough that a straight transfer produces a deed that does not work.

PlanScope's drafting is grounded in English national policy and English local plans, so a Scottish application needs the relevant national framework checked by the reviewer before submission. You can browse the 66 PlanScope report types by category to see what a supporting document set contains, or enter your postcode on PlanScope to see which reports a site is likely to need.

This is general guidance, not legal advice. Check the position with your planning authority or a qualified Scottish solicitor before relying on it.

PlanScope provides AI-assisted draft reports for planning applications. Reports should be reviewed before submission. We do not guarantee planning approval.