A recent successful challenge in the Court of Session by two North East developers will have significant ramifications for the North East and implications for elsewhere in Scotland.
The Strategic Transport Fund, introduced by Aberdeen City and Shire Strategic Development Planning Authority (SDPA), sought contributions to address the cumulative impact on the transport network of the significant scale of development planned for the Aberdeen City Region.
The cost of mitigating the cumulative impacts would be spread across a wide area with no single development being responsible for the entire cost of a specific transport infrastructure improvement. Payable as a “roof tax” there would inevitably be some winners and losers in this approach.
The Supplementary Guidance (SG) was challenged on the basis that it failed to comply with Scottish Government Circular 3/2012; Planning Obligations and Good Neighbour Agreements. The developers argued that it lacked a direct relationship between the level of contributions sought and the impact of development. The Court of Session accepted this and quashed the guidance considering it to be unlawful.
The SG has been in place since 2012 and by September last year contributions in excess of £20 million had been agreed in relation to the fund with £1.7 million having already been paid into the fund. The consequences of the Court of Session decision are therefore significant.
The SDPA has now appealed the decision to the Supreme Court but already applications have been submitted by others to vary or discharge their Section 75 obligations. These are likely to remain undetermined pending the outcome of the appeal process. Should that appeal be dismissed more applications will inevitably follow.
The outcome, and response to it, will no doubt be followed closely by Authorities across Scotland not least in Fife and Perth & Kinross where similar schemes operate.
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