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First Court Decision on NPF 4 Housing Policy

Date: 06/05/2024 | Planning, Residential Development

Mossend Says Goodbye Gladman, Hello MATHLR *!

Miller Homes Ltd v Scottish Ministers [2024] CSIH 11 is the first Court of Session decision on housing policies in National Planning Framework 4. In it, the Court clarifies that planning authorities (“PA”s) must consider NPF 4 when interpreting their local development plans (“LDP”s), from the date NPF 4 was adopted. This requirement affects both the substance of the policies and how PAs intend to implement them (as set out in “action programmes” pre-NPF 4 and “delivery programmes” post-NPF 4). The circumstances of this case are common to many developers and this judgment has been eagerly awaited by the housebuilding sector. Its full ramifications will take time to emerge but an initial review of some key points is below.

This case concerned an application made under a pre-existing LDP and which was still being decided when NPF 4 came into effect on 13 February 2023. For context, NPF 4 made fundamental changes to planning policy for housing in Scotland: “The housing policies in the old Scottish Planning Policy (SPP) have been largely swept away. Gone is the requirement to maintain an effective five-year housing land supply. Gone is the focus on whether targets have been met and whether land allocated for housing was in fact being developed to meet any shortfall in supply. The operation of the “tilted balance”, analysed by this court in Gladman v Scottish Ministers 2020 SLT 898, is now a thing of the past” (see judgment at para 40 and Davidson Chalmers Stewart’s previous articles on the Gladman case).

The developer submitted a planning application in March 2022 to build 250 houses on a windfall site in Mossend, West Lothian. It relied on the LDP in force at the time, which contained housing policy which relied on five-year housing supply calculations and was generally more supportive of development on unallocated sites than the relevant part of the then-draft NPF 4, Policy 16. The developer appealed the PA’s non-determination of the application, which was called in by the Scottish Ministers in April 2023 (after NPF 4 was adopted). The Scottish Ministers issued their decision to refuse consent in July 2023, which was the subject of the Court challenge.

In Court, the developer argued that the LDP housing formulae relevant in 2022 continued to apply until the next LDP took effect, post-NPF 4. The Court disagreed and reiterated that NPF 4 prevails where it conflicts with housing policies in pre-existing LDPs, from the date NPF 4 was adopted. There was nothing in law to suggest that PAs should await a future LDP to take NPF 4 into account. Further, the requirement for LDP implementation programmes to be updated and maintained meant that a new-style “delivery programme” was required under NPF 4 (to replace the existing “action programme”). The aim of NPF 4 Policy 16 was to enable PAs to respond to housing market changes with more agility so implementation programmes must be living documents. A post-NPF 4 “delivery programme” must include housing pipelines (specifying intended timescales for delivery, sequencing and the treatment of unallocated sites), which in turn depended on the target formulae relevant to Policy 16.

Please get in touch with our Head of Planning, Jacqueline Cook, if you’d like to discuss the impact this case could have on housing consents in Scotland. 

(* Minimum All-Tenure Housing Land Requirement.)

The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.

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