30.3 Agreements Regulating Development or Use of Land

30.3.1 Acceptability for registration

There are seven registrable/recordable deeds in terms of section 75 of the 1997 Act, these are:

• Planning obligations (section 75(1)(a));
• Unilateral obligations (section 75(1)(b));
• Determination modifying planning obligation (section 75A or 75B);
• Determination discharging planning obligation (section 75A or 75B);
• Good neighbour agreements ('GNAs') (section 75D);
• Determination modifying good neighbour agreement (section 75E or 75F); and
• Determinations discharging GNAs (section75E or 75F).

Such documents should be accepted for recording in the General Register of Sasines or registration in the Land Register of Scotland provided they comply with the following registration criteria:

• Determinations should refer to the recording/registration date of the planning obligation or GNA to be discharged or modified;
• With one exception, the deed should be 'self-proving' (or, in other words, attested by a witness) as provided for in the Requirements of Writing (Scotland) Act 1995;
• The subjects must be appropriately described, including reference to title numbers where appropriate.

While it is desirable that the deed makes reference to the appropriate section of the Act there is no statutory requirement to do so.

As there is no prescribed form the document may not meet the above criteria; accordingly the document may be annexed to another form of deed, such as an agreement, which is itself in a format acceptable for recording/registration.

The original deed must be submitted.

The exception referred to above concerns a Notice of Determination issued by Scottish Ministers under section 75B or 75F of the 1997 Act. It is competent to record such a document in the Sasine Register without it having to be 'self proving'. The Keeper will apply the same approach for applications made to register these documents in the Land Register.

30.3.2 Deeds creating obligations

By virtue of Section 75(1)(a) 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’. 

Alternatively a planning authority may impose obligations on a unilateral basis in terms of s.75(1)(b), or adjoining proprietors can enter into a good neighbour agreement (GNA) in terms of s.75D.

Any such agreement recorded in the Register of Sasines or registered in the Land Register of Scotland shall be enforceable at the instance of the planning authority against persons deriving title to the land from the proprietor of the land at the time of recording/registration of the instrument (section 75(5) of the 1997 Act).

Registration staff should note that the planning authorities' right of enforceability, in terms of section 75(5), is subject to the proviso contained in section 75(6) 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 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:

 ‘Agreement (under section.75 (include sub-section if quoted) of the Town and Country Planning (Scotland) Act 1997), recorded/registered …… …, between X Council [planning authority] and B … …’

30.3.3 Variation/Discharge of Agreements

Agreements under section 75, including GNAs, can be varied or discharged; the terms of the amendment will be set out in a Determination as specified in 30.3.1 above.

Where the determination fully discharges the obligations in an agreement then the original entry should be deleted from the title sheet.  Where the obligations are only partially discharged, or are varied, then the original entry should be retained and a subsequent entry created for the determination that reflects the extent of discharge/variation.

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.

30.5 Old Mineral Workings

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.

30.7 Tree Preservation Orders

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.

30.7.1 Section 160 TPOs

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.

30.7.4 Section 163 TPOs

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.

30.7.5 Section 249 TPOs

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.

30.7.6 Procedures

The title sheet entry should disclose the enactment under which the TPO is made e.g.

• • ‘Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997)...........’

The title sheet entry should also disclose the date of confirmation plus the effective date of the order, if that is different, thus:

(a) Section 160 TPO: The date of confirmation is also the effective date of the order. In the title sheet entry, the date of confirmation may conveniently be inserted before the date of recording and/or registration.
For example:

• • ‘Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997) confirmed on … and recorded G.R.S. (…) ….contains conditions affecting trees and groups of trees (including prohibitions against the cutting down, topping, lopping, wilful destruction &c thereof) situated on the subjects in this title (or subjects of which the subjects in this title form part)’.

(b) Section 163 TPO: Both the effective date of the order (to be found in standard paragraph 15 of the TPO) and the later date of confirmation should be noted e.g. ‘Effective on.... and confirmed....’ in the appropriate place in the entry.
For example:

• • ‘Tree Preservation Order No.58 by City of Edinburgh Council (under Section 160 of the Town and Country Planning (Scotland) Act 1997), effective on… and confirmed on … and recorded G.R.S. (…) ….contains conditions affecting trees and groups of trees (including prohibitions against the cutting down, topping, lopping, wilful destruction &c thereof) situated on the subjects in this title (or subjects of which the subjects in this title form part)’.

(c) Section 249 TPO. With the exception that the effective date of the order will have to be gleaned from the planning authority, the procedure is as for a section 163 TPO.

It is unlikely that the ordnance map will disclose individual trees. As such, it will generally not be possible to identify affected trees on the title plan. As per the above examples a verbalised entry will suffice. However, when only part of a title is affected a reference should be added to the title plan to accurately identify the area.

30.8 National Parks (Scotland) Act 2000

This Act of the Scottish Parliament received Royal Assent on 9 August 2000 and came into force on 8 September 2000 by virtue of the National Parks (Scotland) Act 2000 (Commencement) Order 2000. It is anticipated that the only areas which will be designated as National Parks are firstly Loch Lomond and the Trossachs and secondly the Cairngorms. The provisions of the Act which legal settlers need to be aware of are outlined below.

30.8.1 Management Agreements

Under section 15, a National Park authority may enter into an agreement (a ‘management agreement’) with ‘any person with an interest in land to do, or to secure the doing of, whatever the parties to the agreement consider necessary to achieve, in relation to the National Park, the National Park aims.’

Section 15(5) provides that ’a management agreement which affects a registrable interest in land may –

• • (a) where that interest is registered in the Land Register of Scotland, be registered in that Register,

    (b) in any other case, be recorded in the appropriate Division of the General Register of Sasines.’

‘Registrable interest’ is defined in the Act to accord with the meaning in section 28 of the Land Registration (Scotland) Act 1979.

The effect of registering or recording the agreement is set out in subsections (6) and (7). The agreement becomes ‘enforceable at the instance of the National Park Authority against any person deriving title to the land from the other party to the agreement.’ Thus, subject to the following caveat, it will bind singular successors. Section 15(7) provides, however, that ‘it [the agreement] is not enforceable against a third party who has acquired right to the land (whether or not completed by infeftment) in good faith and for value prior to the agreement being so registered or recorded, or against any person deriving title from such third party.’

The possibility therefore exists that a prior recorded/registered management agreement may not affect a subsequent purchaser’s interest if that purchaser acquired right to the land prior to the management agreement being recorded/registered. Thus, if it appears from the purchaser’s disposition that the date of entry was on or before, or even slightly after, the date of recording/registration of the management agreement, enquiry should be made of the submitting agent as to when the purchaser acquired right to the land. Although the phrase ‘acquired right to the land’ is not defined in the Act, settlers should treat the relevant date as the date of settlement. This is when the purchaser pays over the purchase price in return for the disposition and will normally, though not necessarily, be the date of entry. It is noted that this provision only applies where the purchaser has acquired the subjects in good faith and for value. If there is no consideration in the deed or less than full value is paid then the management agreement will affect the subjects notwithstanding that the purchaser acquired his/her right to the land prior to the date on which the management agreement was recorded/registered.

Management agreements create real burdens upon recording/registration and so will be entered in the burdens section of the title sheet.

Sections 15(8) and 15(9) permit the parties to the agreement, and third parties deriving title from a party to the agreement, to terminate the agreement at any time. Where such an agreement has been registered or recorded, an agreement to terminate must also be recorded.

30.8.2 Transfers of Property

Section 29 validates schedule 4 which deals with transfers of property between local authorities and National Park authorities as follows:

Schedule 4, paragraph 1(1) provides that ‘if the Scottish Ministers consider that it is necessary or expedient in connection with the making of an order under Section 6 or 30(1) or the exercise by an National Park authority of its functions, they may –

(a) require a local authority any part of whose area is within the National Park to make – ….

• • a scheme for the transfer of property and liabilities of the local authority to a National Park authority or another local authority

(b) require a National Park authority to make – ….

• • a scheme for the transfer of property and liabilities of the National Park authority to a local authority or another National Park authority.’

This is further amplified by Schedule 4, paragraph 7(1). It states that ‘on the transfer date-

• • (a) property to which a property transfer scheme approved or made by the Scottish Ministers under this schedule applies transfers to and vests in, and

    (b) liabilities to which such a scheme applies become liabilities of, the transferee authority.’

Under paragraph 7(2), a certificate issued by the Scottish Ministers shall be conclusive evidence as to whether any property has been transferred. The Act and the transfer scheme will form the relevant links in title. Unless the property being transferred is expressly referred to in the transfer scheme a certificate as aforesaid should be requisitioned if not submitted with the application.

30.8.3 Acquisition and Disposal of Land by Park Authority

Schedule 2 paragraph 5 applies the compulsory purchase provisions in the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 to National Park authorities. National Park authorities are given the power to purchase land by agreement or, with the consent of the Scottish Ministers, compulsorily. The latter case excludes Crown Lands and is subject to any other legislation which gives a National Park authority powers of compulsory purchase. Guidance on how to proceed in this instance is contained in the section on compulsory acquisition at Compulsory Acquisition .

Under paragraph 13, if such land is subject to council house tenancies, the authority is treated as a public sector landlord for the purposes of the Housing (Scotland) Act 1988. The guidelines pertaining to council house sales (see paragraphs xxx will therefore apply in the event of a sale by the National Park authority.