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Tilted stones on the beach

Sustainable Development Hanging in the [Tilted] Balance

Date: 02/10/2020 | COVID-19, Construction, Energy & Natural Resources, Planning, Real Estate, Residential Development

An important Scottish Government consultation on changes to the Scottish Planning Policy (SPP) closes on 9 October 2020.  Published without presage in July, it is styled as a technical document but has substantive implications.  It could affect how planning decisions are made and potentially make it harder to develop homes and other projects in future.  

The Consultation addresses how local housing policy should interact with national objectives before more permanent reforms can take hold under the next National Planning Framework (NPF4, which will outline spatial planning priorities across Scotland until 2050).  Specifically, it seeks views on whether to remove the current presumption in favour of granting planning applications which contribute to sustainable development (set out at paragraph 33 of the SPP).

Initial reactions to the Consultation from councils and industry were so opposed that the Chief Planner took the unusual step of issuing a letter confirming that the fate of the Presumption has not yet been sealed.  It states that the Presumption applies until further notice and urges all stakeholders to submit their views on its proposed removal.  For those interested in the Consultation and considering responding to it, some of its implications and our views on them are set out here. 

The Presumption in Context

To determine a planning application, a decision-maker must identify the benefits and harms of the proposed development and weigh them against each other to arrive at a decision.  The more important an impact, the more weight it is given on the planning “scales”. Local planning policy is one of several weights that can be put on those scales.  If the proposals comply with local policy, the scales are tipped in favour of granting consent unless “material considerations indicate otherwise”.

If local policy is either silent on the relevant issues or out of date, a decision-maker looks to the “material considerations” to assess if they tip the scales one way or the other.  National policy such as the SPP is a material consideration. If the application proposals promote the national aim of sustainable development, the SPP Presumption is triggered and becomes a “significant material consideration”, adding weight to the “grant consent” side of the scales. In planning parlance, this is known as “the tilted balance”.

Local authorities set housing supply targets for their administrative areas.They must ensure there is enough unconstrained land available for 5 years’ housing supply at any given time.  Where there is a shortage in the 5-year housing supply, local policy is considered out of date and the Presumption is triggered.  There are differences in how housing supply can be calculated (which the Consultation also addresses) but, in essence, the bigger the shortage in housing, the heavier the weight of the Presumption. In such circumstances, the adverse impacts of the proposals must “significantly and demonstrably” outweigh the benefits in order to tip the scales towards a refusal of consent.

The Scottish Courts recently confirmed that this is the correct treatment of the Presumption and that the tilted balance applies under the SPP (in Gladman Developments Ltd v Scottish Ministers  [2020] CSIH 28).  

The Presumption in Practice

The Gladman decision could lead to the release of land for housing development even if it is not allocated as residential in local policy and the Consultation appears to be a direct response to this. The Consultation arises from the fears that Gladman could undermine the primacy of the development plan, by reducing the weight attributed to local planning policy on the decision-making scales and thereby diluting the control of the local authorities which formulate local planning policy. It also puts pressure on councils to ensure generous land supplies are provided in their policies, lest land allocated for other uses is poached for housing in the event of a shortfall.   

The implications of Gladman are more pronounced in the wake of Coronavirus. Lockdown has interrupted administrative functions: 5-yearly local policy reviews and annual housing supply audits have been delayed and the update to NPF4 the National Planning Framework (NPF4, which sets out spatial planning priorities across Scotland until 2050) has been pushed back to 2022. It is now more likely than ever before that housing supply figures will be out of date or indicate a shortfall.

The Consultation suggests that the Presumption is confusing in our current circumstances. However, its use in practice establishes it as a unique and valuable tool for plugging temporary gaps in planning policy. Removing the Presumption stands to make the consenting process less agile. The Consultation states the removal of the Presumption is to protect the primacy of local policy and improve “clarity”. However, the Presumption only applies where policy does not. Without it, it is not clear what mechanism, if any, might fill the regulatory vacuum. 

A recent Court of Session judgment handed down since the Consultation began underlines the usefulness of the Presumption in practice. On 24 July 2020, Inverclyde Council’s latest housing policy was quashed, following a challenge by a group of developers. The Court held that the housing chapter of the 2019 Inverclyde Local Development Plan did not allocate sufficient land to ensure housing needs in the area could be met and so could not be adopted. Until Inverclyde Council updates its housing supply figures, the Presumption can apply to help developers obtain consent for residential schemes and minimise the risk of a housing shortage in Inverclyde in the medium term. There is no obvious alternative way of achieving this without the Presumption, at local, regional or national level. 

Unintended Consequences

The Consultation is firmly located in the context of residential development but its implications extend far beyond housing provision.  The Presumption applies to all types of development, consented under all planning legislation derived from the Town and Country Planning Act.  The impacts of this on the desired post-Covid green recovery, for example, are considerable. For example, it is increasingly difficult for developers to identify appropriate land for renewable energy installations. It is unclear how removing the Presumption and decreasing the probability of windfall sites becoming available assists Scotland in achieving its aims of sustainable growth.

All of the issues touched on in this article so far point out the negative aspects of the consultation, so what are its up sides? To be frank, they are not obvious. Whatever procedural advantages might inhere in them could be achieved by other means or represent no overall, net benefit. Removing the Presumption could, in theory, increase the value of land which has already secured planning permission for housing but this could distort the down-stream housing market.

What Now?

The clarity sought by the Consultation seems ever-more elusive and the consultation period is not even over yet.  However, the recent planning appeal by Barratt Homes West Scotland decided on 17 September, the Reporter usefully enunciates a sensible approach to take in applying the Presumption until the results of the Consultation are finalised:

  • until there is a specific change in advice, the residual method of calculating the five-year effective housing land supply can be appropriate (as opposed to the alternative method proposed in the Consultation in which prior shortfalls in housing supply are not considered);
  • whilst the terms of the Consultation paper may be a material consideration, the proposed changes to SPP are yet to be confirmed so current policy prevails for now;
  • following Gladman, what constitutes sustainable development is a matter of planning judgement but a housing development which helps reduce a housing shortage almost inevitably “contributes to sustainable development”;
  • a housing shortage is a “significant material consideration” which indicates consent should be granted unless there are adverse impacts that significantly and demonstrably outweigh the benefits of the development when assessed against the wider policies in SPP.

If you wish to discuss any of the issues above or how best to respond to the Consultation, please contact Caroline Court, Stephanie MacKenzie or Jacqueline Cook.

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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