Applying the ‘Tilted Balance’ in Planning Decisions

United Kingdom

Since Scottish Planning Policy (“SPP”) introduced a presumption in favour of development that contributes to sustainable development in 2014, many hours have been spent arguing about how the presumption should be applied, particularly in planning appeals.

In a recent statutory appeal under the Town and Country Planning (Scotland) Act 1997 (the “1997 Act”), the Inner House of the Court of Session provided some clarity on how the presumption should be applied. The statutory appeal was successfully brought by Gladman Developments Limited (“Gladman”) and quashed a Reporter’s decision to refuse their planning appeal against the decision of Inverclyde Council (the “Council”) to refuse planning permission for a residential development at Quarriers Village near Kilmacolm.

Context

Section 25 of the 1997 Act requires planning applications and appeals, among other things, to be determined in accordance with the development plan unless material considerations indicate otherwise. SPP, as a statement of Scottish Government policy, is one of the principal material considerations that will be taken into account.

This statutory appeal was principally concerned with paragraphs 125 and 33 of SPP which state, respectively:

Planning authorities, developers, service providers and other partners in housing provision should work together to ensure a continuing supply of effective land and to deliver housing, taking a flexible and realistic approach. Where a shortfall in the 5-year effective housing land supply emerges, development plan policies for the supply of housing land will not be considered up-to-date, and paragraphs 32-35 will be relevant.

Where relevant policies in a development plan are out-of-date or the plan does not contain

policies relevant to the proposal, then the presumption in favour of development that contributes to sustainable development will be a significant material consideration. Decision-makers should also take into account any adverse impacts which would significantly and demonstrably outweigh the benefits when assessed against the wider policies in this SPP. The same principle should be applied where a development plan is more than five years old.

The Appeal Decision

In dismissing the appeal and refusing planning permission, the Reporter concluded that there was a probability that there was a shortfall in the 5-year effective housing land supply and, as a result, the presumption was a significant material consideration in terms of paragraphs 125 and 33 of SPP.The statutory appeal was concerned with what the Reporter’s approach should have been once this conclusion was reached.

Once the presumption was engaged, the Reporter’s approach was to consider whether or not the proposal constituted sustainable development by assessing the proposal against the 13 principles set out at paragraph 29 of SPP, sometimes referred to as the sustainable development principles.The Reporter concluded that the proposal did not constitute sustainable development and, consequently, the presumption in favour of development that contributes to sustainable development did not apply.

The Arguments

Gladman argued that the Reporter failed to apply the ‘tilted balance’ in determining the appeal and that the application of the ‘tilted balance’ did not require a finding that the proposal was sustainable development as a pre-requisite.  In other words, once there is an identified shortfall in the 5-year effective housing land supply, the adverse impacts would need to significantly and demonstrably outweigh the benefits to justify not supporting the proposal.  It was also argued that applying the ‘tilted balance’ only where the development was found to be sustainable would seriously inhibit tackling the housing shortfall.

In response, the Scottish Ministers argued that the Reporter’s approach could not be faulted and that the ‘tilted balance’ was only to be applied where the development was found to be sustainable.They also sought to distinguish decisions on similar provisions in England’s National Planning Policy Framework which were relied upon by Gladman due to the different wording in SPP.

The Scottish Ministers argued that Gladman’s approach was close to “development at any cost” whereas SPP aimed to achieve the right development in the right place and not development at any cost.

Decision

The Inner House concluded that where there is a housing shortage, that shortage is a significant material consideration.It stated that the starting point for determining the proposal ought to have been that there was a presumption in favour of the development because it provided a solution, at least in part, to the shortfall in the effective housing land supply.The question was then whether the adverse impacts of the proposal “significantly and demonstrably outweighed” the benefits of the development.

Guidance was also provided on how to assess the extent of any shortfall in the housing land supply.  Gladman and the Council had differing approaches to assessing the 5-year effective housing land supply in the course of the appeal.  The Reporter had found errors with both approaches but was able to conclude that there was a probability of a shortfall.

The Inner House found that there is no need for the precise level of any shortage to be calculated, but what is required is a broad assessment of the extent of the shortage.This will enable the decision maker to determine the weight to be attached to the shortfall and the level of adverse impact required to tilt the balance towards refusal of the proposal.

Comment

Where a shortfall in the 5-year effective housing land supply exists, this decision suggests that there should be a ‘tilted balance’ in favour of any residential development, which can be tilted towards refusal where the adverse impacts significantly and demonstrably outweigh the benefits of the development.  The greater the shortfall, the greater the tilt in favour of residential development and the greater the adverse impacts that would be required to redress the tilt towards refusal.

This decision will provide encouragement for those involved in delivering housing, and many with current applications and appeals in the system. Landowners, developers and promoters will be monitoring 5-year effective housing land supply figures even more closely, and ensuring they are ready to submit applications quickly once a shortfall is identified. Competition will no doubt be fierce to address any shortfalls that arise and arguments over whether a shortfall exists will take on even greater significance.

Planning authorities will need to consider their approach to applications for housing developments carefully once a shortfall is identified. In response to a shortfall, or even an anticipated shortfall, they may also wish to consider whether a plan-led response would be preferable to ‘speculative’ applications or planning by appeal. This may become easier for planning authorities when the provisions of the Planning (Scotland) Act 2019 and associated regulations related to modifications of development plans are in force.

Co-authored by Ambreen Rasool.