Specialist Topics
Town and Country Planning (Scotland) Act 1997
The above Act (hereinafter referred to as ‘the 1997 Act’) both consolidates and amends the previous legislation relating to town and country planning. Previous legislation was largely, though not exclusively, contained in the Town and Country Planning (Scotland) Act 1972 (‘the 1972 Act’). The 1997 Act came into force on 27 May 1997. Accordingly, any deed executed on or after that date pertaining to any of the aftermentioned areas of town and country planning should refer, where reference to governing legislation is appropriate, to the relevant sections of the 1997 Act.
30.2 References to previous legislation
When processing an application for registration involving any of the aftermentioned deeds, and that deed is executed prior to 27 May 1997, the ‘previous’ legislation will still apply. Legal Settlers should, therefore, note that the aftermentioned sections 75, 79, 81 and 246 of the 1997 Act, replaced sections 50, 155, 156B and 254, respectively, of the 1972 Act. Section 71(8) and schedule 8 of the 1997 Act replaced sections 49 A-G of the 1972 Act.
A reference to the previous legislation does not, however, invalidate the deed. By virtue of section 2(4) of the Planning (Consequential Provisions) (Scotland) Act 1997, ‘any reference in any document to a provision of the repealed enactment shall be construed as, so far as is required for continuing its effect, to the corresponding provision of the consolidating Acts.’ Thus, any deed executed on or after 27 May 1997 that refers to the previous legislation should be accepted. Where the deed is being edited for inclusion in the burdens section, a reference to the new legislation should be made in brackets after the reference to the legislation referred to in the deed.
The areas of the 1997 Act with which registration staff need to be familiar are noted below.
30.3 Agreements Regulating Development or Use of Land
By virtue of Section 75(1) of the 1997 Act, a planning authority may enter into an agreement with any person interested in land in their district (insofar as the interest of that person enables him to bind the land), for the purpose of restricting or regulating the development use of the land, either permanently or during such period as may be prescribed by the agreement. Such agreements are generally known as ‘Section 75 Agreements’.
If such an agreement is recorded in the Register of Sasines or, as the case may be, registered in the Land Register of Scotland, it shall be enforceable at the instance of the planning authority against persons deriving title to the land from the person with whom the agreement was entered into (section 75(3) of the 1997 Act).
Registration staff should note that the right of enforceability that a planning authority has by virtue of section 75(3) is subject to the proviso contained in section 75(4) of the 1997 Act. That section provides that no section 75 agreement shall at any time be enforceable against a third party who has in good faith and for value acquired right (whether completed by infeftment or not) to the land prior to the agreement being recorded or registered, or against any person deriving title from such third party.
The following style should be used for entries in the burdens section of the title sheet:
30.4 Agreements as to Use of Crown Land
By virtue of section 246 of the 1997 Act, a planning authority may enter into an agreement with either a government department or the Crown Estate Commissioners to regulate the use of Crown land.
Such agreements may be recorded in the Register of Sasines or registered in the Land Register. This is so, even if the agreement is only for a prescribed period of time.
Any such agreement duly recorded/registered will be enforceable, at the instance of the planning authority, against persons deriving title to land from either a government department or the Crown Estate Commissioners. However, under section 246(4), such agreements will not be enforceable against a third party who has in good faith and for value acquired right (whether by infeftment or not) to the land before the agreement is recorded/registered, or against any person deriving title from such a third party.
By virtue of section 71(8) and schedule 8 of the 1997 Act, it is competent for a planning authority to make certain orders relating to the discontinuance of mineral workings. Paragraph 8 of schedule 8 provides that no order under either paragraph 3 or 5 of said schedule shall take effect until it is either registered in the Land Register or recorded in the Sasine Register.
Paragraph 3 provides for an order which
(a) prohibits the resumption of mineral workings, where it appears to the planning authority that such workings have been carried out but have permanently ceased and
(b) imposes requirements as regards the site of the workings in respect of removing plant and alleviating injury to amenity etc.
Paragraph 5 provides for ‘suspension orders’, which require that steps be taken for the protection of the environment where it appears to the planning authority that mineral workings have been carried out in, on or under any land but that it has been temporarily suspended.
30.5.1 Automatic referral to Legal Services
Provisions have been made for identifying the above orders at intake section stage, in order that the Legal Services can identify all the interests affected by them and give instructions accordingly. Settlers should note that all such orders will be identified on the application record by deed code number 16. If any such orders are discovered at a later stage and have not been seen by the Legal Services, they should be referred thereto without delay.
Paragraph 11 of said schedule makes provision for the giving of notice to the planning authority when it is intended to recommence mineral workings, and for the revocation by the authority of orders made under the aforementioned paragraphs 3 and 5. It makes no provision for the registration of notices of revocation but such deeds, if presented, should also be submitted to the Legal Services for instructions as regards registration.
30.6 Notices of Payment of Compensation
Part IV of the 1997 Act governs the payment of compensation following upon revocation or modification of existing planning permission. Section 79(1) provides for the recording in the Register of Sasines or registration in the Land Register of notices of payment of compensation. Section 81(7) provides for the similar recording/registration of a notice relating to the recovery of compensation or as to the non-recovery of such compensation.
With effect from 27 May 1997, the provisions governing TPOs are to be found in the Town and Country Planning (Scotland) Act 1997 (‘the 1997 Act’). Prior to that date, the governing provisions were to be found in the Town and Country Planning (Scotland) Act 1972 (‘the 1972 Act’) and the Town and Country Planning Act 1984 (’the 1984 Act’).
Legal settlers processing applications involving TPOs executed prior to 27 May 1997, and so governed by the previous legislation, should note that the aftermentioned Sections 160, 163 and 249 of the 1997 Act replaced sections 58 and 59 of the 1972 Act and section 2 of the 1984 Act respectively. References to previous legislation are to be dealt with as per the instruction in paragraph References to previous legislation.
A planning authority can grant a Tree Preservation Order under section 160 of the 1997 Act. The TPO is then confirmed at a later date by the planning authority itself, with or without modification, after the authority has considered any objections. Section 161(2) provides that, as soon as may be after a TPO has been confirmed, it shall be recorded or registered by the planning authority.
30.7.2 Requirement for confirmation
While it is not competent to record or register a TPO before it has been confirmed there is a requirement, in terms of current legislation, for the local planning authority to send a copy of the order to the Keeper; however the Keeper is under no statutory duty to take action on the unconfirmed order. This is separate from any request by the local authority to vet a draft order to confirm that all proprietors of the affected area had been identified.
Accordingly, any TPO presented for recording or registration before it bears to have been confirmed should be rejected, however it should be borne in mind that, in the absence of an application form, the deed may have been submitted purely because the Council had a statutory requirement to do this and it is for the business unit to file such documents in an appropriate manner.
30.7.3 Evidence of Confirmation
Evidence that the TPO has been confirmed should be in the form of a docquet in suitable terms endorsed or annexed to the TPO. It may be authenticated by a 'proper officer' in terms of section 193 of the Local Government (Scotland) Act 1973 as an alternative to the normal method of execution of deeds by the planning authority. The docquet is recorded or registered as part of the Order.
Evidence in another form (e.g. a letter from the chief executive of the planning authority), whilst not sufficient to permit recording in the Sasine Register, is sufficient to permit registration in the Land Register of a TPO exclusively affecting registered land.
It has come to light that some TPOs may have been recorded or registered before confirmation. The standing of such recordings or registrations must be in serious doubt. The remedy, if a remedy is sought, is as regards Sasine Recordings to re-record the TPO with a confirmation and docquet under section143 of the Titles to Land Consolidation (Scotland) Act 1868. When a title sheet reflects an unconfirmed TPO, the position can be regularised by adding a note that the TPO was confirmed on whichever date, upon application being made on Form 2 with appropriate evidence.
As an alternative to a section 160 TPO, a planning authority can make use of an emergency procedure under section 163 of the 1997 Act. Section 163 allows a TPO to take provisional effect at once; the TPO then has effect for six months or until it is confirmed, whichever happens first. Once again, the TPO cannot competently be recorded or registered until after it has been confirmed.
If a section 163 TPO is not confirmed within six months from the date on which it was made, it falls. The question then arises whether a planning authority can competently confirm the TPO on a later date, so that it revives. The Keeper has been advised that a lapsed TPO is able to be confirmed at a later date and so be renewed. Accordingly, any section 163 TPO confirmed outwith the six month period should be accepted for recording in the Sasine Register or registration in the Land Register.
Under Section 249 of the 1997 Act, a planning authority may make a TPO in respect of Crown land in which no interest is for the time being held, otherwise than by or on behalf of the Crown, if they consider it expedient to do so for the purpose of preserving trees or woodlands on the land in the event of it ceasing to be Crown land or becoming subject to a private interest (i.e. an interest which is not a Crown interest). Such a TPO does not take effect until the land in question ceases to be Crown land or becomes subject to a private interest, whichever occurs first. Equally, the TPO does not require confirmation until after the first of those events has occurred. Once the TPO is ‘triggered’ by the appropriate event, it continues in force until either six months have expired or the Order is confirmed, whichever occurs first. The six month period runs from the date of notification by the appropriate Crown Authority to the planning authority that the event has happened.
Section 249 TPOs are not to be accepted for recording or registration until after they have been confirmed. The policy of accepting section 163 TPOs which have lapsed before purported confirmation also applies to Section 249 TPOs.
The effective date (being the date of receipt by the planning authority of the notification referred to above) will not be disclosed in the TPO, so it is necessary to obtain evidence thereof from the planning authority (in the form of a certified extract of any planning authority records containing the relevant information, e.g. minutes of meeting or TPO Register), both in order to be satisfied that the TPO was confirmed before the lapse of the six month period which commenced with the notification, and to enable the effective date to be disclosed in the title sheet entry.