Developer Obligations - Frequently Asked Questions (FAQ’s)
1. What are Developer Obligations?
Developer obligations are contributions sought from developers (in kind or financial) to
mitigate any pressure their development may have on existing infrastructure and facilities.
This is to ensure that existing residents are not disadvantaged. Developer obligations must
relate to the impact of the proposed development. They cannot be sought for existing
deficiencies.
2. What is draft Supplementary Guidance?
The emerging Moray Local Development Plan (LDP) sets out the strategy for the
development and use of land in Moray. The LDP contains policies and land designations to
guide development. Supplementary guidance expands upon policies set out within the LDP
to assist in their consistent interpretation and implementation. Policy IMP3 Developer
Obligations sets out a commitment to prepare supplementary guidance on developer
obligations.
The draft supplementary guidance sets out the developer obligations process, the
infrastructure and facilities requirements that the Council will seek for different types of
development, and the assessment methodologies that will be used to calculate the level of
contribution required. In summary, the draft guidance sets out that contributions will be
sought for education (pre-school, primary, secondary, further), transport, community, sports
and recreational facilities, cemeteries, healthcare (GP surgeries, dental practices,
community pharmacies), town centre improvements, environmental and access
improvements and waste.
The draft guidance includes a list of the infrastructure and facilities that are likely to be
required and their contribution rate for each Associated School Group (ASG), e.g. Forres
Academy. This is to help provide clarity and certainty to the development industry and
communities over what will be sought from a new development. Any infrastructure or
facilities proposed through the consultation that meet the tests set by the Scottish
Government (outlined below) and are deliverable will be included within the relevant ASG list
in the finalised supplementary guidance. This means that the Council would seek a
contribution towards this requirement from relevant new development. However, where a
developer is concerned that the viability of their development may be undermined by the
application of developer obligations, and this is accepted by the Council then the Council will
need to prioritise the infrastructure and facilities that obligations are sought for. For further
information about development viability please see question 4.
3. What can Developer Obligations be sought for?
Developer obligations can be sought for capital costs, e.g. construction works. They cannot
be sought for revenue costs, e.g. maintenance and running costs such as utility bills.
Developer obligations can be sought where there is a need to provide additional facilities (or
increase the capacity of an existing facility) to accommodate residents from the new
development. The following examples illustrate where the existing capacity of a community,
sports or recreational facility may be increased to accommodate additional residents (and
usage):
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Reconfiguration of a village hall to accommodate additional community space (e.g.
conversion of a store room to crèche);
Floodlighting for sports pitches to allow them to be used for longer periods of time
and by a larger range of user groups;
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
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Provision of toilets/changing facilities associated with an existing sports pitch to
enable them to be more widely used;
Improving the drainage and surfacing of sports pitches to bring them back into use;
Making premises Disabilities Discrimination Act (DDA) compliant (e.g. sports
pavilions, village halls) where it would allow more residents to use the facility.
It is important to be realistic about what is achievable when seeking contributions and ensure
these are related to the impact of the proposed development. Where a relatively small scale
of development is likely to take place in a town or village, it is unlikely that sufficient
contributions will be generated for larger projects. The Council will avoid seeking
contributions that will result in a slow accumulation of funds as these are unlikely to be spent
because monies can only be held for a limited number of years and are an administrative
burden to the Council.
4. Do developer obligations impact on a development’s viability?
Developer obligations must be reasonable to ensure that Moray remains an attractive area
to develop in and to encourage economic growth. Developer obligations should be factored
into the proposed developments financial appraisal from the outset. In exceptional
circumstances, the developer will be able to demonstrate to the Council in a viability
statement how the application of developer obligations will render a development unviable
on a confidential basis. This statement will be assessed by a third party at the developer’s
expense. Where the Council accepts this position, the obligations and their respective levels
may be negotiated and varied. This may include reviewing the timing or phasing of paying
financial contributions to assist the financial viability of a development.
In these
circumstances, the Council will need to prioritise those infrastructure and facility
requirements that obligations will be sought for. This prioritisation will be established with
the finalised Supplementary Guidance and reported to a further meeting of the Planning &
Regulatory Services Committee for approval.
5. How will developer obligations be secured?
Remittance of financial contributions can be undertaken through the provision of an upfront
payment (Section 69 agreement) prior to the release of the Planning Decision Notice or by
entering into a Section 75 agreement (also referred to as a Planning Obligation). A Section
75 legal agreement is likely to be required for larger obligations to secure these through
phased payments and in perpetuity with each successor in title.
6. What criteria or tests are applied when seeking Developer Obligations?
The Scottish Government set strict criteria (or tests) that must be met when the Council seek
developer obligations. All of these tests must be met. The tests (and an example of each
for explanation purposes) are set out below:
TEST
Necessary to make the
proposed development
acceptable in planning
terms;
EXAMPLE
Without the proposed infrastructure or facility there would be a
shortfall in provision and this would have an adverse impact on
existing residents, e.g. where a primary school is at capacity a
contribution will need to be sought to accommodate additional
pupils arising from a new development.
Serve a planning purpose
and where, it is possible
to identify infrastructure
provision requirements in
advance, should relate to
development plans;
The proposed sports facility (e.g. football pitch) satisfies the
open space requirements set out in the LDP.
The supplementary guidance including the infrastructure and
facility requirements set out in the ASG lists provide this
information in advance.
TEST
Relate to the proposed
development either as a
direct consequence of the
development or arising
from the cumulative
impact of development in
the area;
Fairly and reasonably
relate in scale and kind to
the proposed
development; and,
Be reasonable in all other
respects.
EXAMPLE
Direct: The proposed development will generate x primary
school pupils and therefore x contribution will be necessary to
build an extension to the local school to accommodate the
additional pupils. The contribution will not be used to
compensate for an existing lack of facilities at the local school.
Cumulative: A number of individual developments will place
additional pressure on key junctions on the road network and
the developer will need to carry out works at these junctions or
provide a contribution towards mitigation works to negate their
impact.
Scale: Where a proposed housing development results in a
10% increase in the population of a town or village the
development is taking place in, then only 10% of the total cost
of the proposed facility should be sought.
Kind: The infrastructure or facility that the contribution is being
sought for should be appropriate to the type of development,
e.g. a business development will not generate any primary or
secondary school pupils therefore it is not appropriate to seek
contributions towards education facilities.
The developer obligation will not mitigate any existing impact
that is present prior to development of the site. The application
of the contribution will not undermine the viability of the
development.
7. Can a developer appeal against a Developer Obligation?
Yes. Similar to a planning application refusal, a developer has the right to seek to modify or
discharge (i.e. appeal) a planning obligation. If the Council is considered to have acted
unreasonably in seeking the contribution, the Council may have costs awarded against
them.
8. Do Developer Obligations have to be spent within a specified time period?
The Council will generally endeavour to spend the funds received for appropriate
infrastructure and facilities within 10 years of the date when planning permission is
implemented or for those applications where phased payments are received within 10 years
of the date of the final payment, unless otherwise stated. Contributions not spent by the end
of the relevant period will be refunded to the developer with interest.
9. Can developer obligations be match-funded?
Yes. Developer obligations may be used to attract match funding from other sources to
further enhance the facility the funds are being sought for, which will potentially provide a
greater return to the community.
10. What is a constituted community group?
A constituted community group is run on a voluntary basis and it is set up as an organisation
in its own right with a management committee, constitution and its own bank account. The
most common types of constituted groups formed within the community and voluntary sector
include: associations (e.g. community associations), trusts (e.g. grant-making organisation),
and companies limited by guarantee (e.g. charitable company).
11. What is a project delivery plan?
A project delivery plan should define the project, set out the business case (including capital
and revenue costs), identify key milestones/timeline for delivery, define
responsibilities/project management, and show that stakeholder analysis has been carried
out.
12. What happens next?
Following the consultation, any proposed infrastructure or facilities will be assessed against
the tests set out above. Those that are considered to satisfy all of the tests and are with an
existing constituting body with a project delivery plan will be included within the ASG list of
infrastructure and facility requirements in the finalised supplementary guidance. This means
that a contribution could be sought for this requirement from related new development.
All comments and a response will be reported back to the Planning and Regulatory Services
Committee along with the finalised Supplementary Guidance and revised ASG lists for
approval. Should the finalised guidance be approved, it will become part of the Moray LDP
and be used in the determination of planning applications.