The Scottish Government has launched a consultation on proposed changes to aspects of Scottish Planning Policy which are particularly key for proposed residential developments. While changes were anticipated following the Court of Session’s decision in the Gladman case, discussed in our recent article here, the swiftness and extent of the proposed changes will have taken many by surprise.
The consultation paper can be accessed here and the deadline for responses is 9 October 2020.
Removal of ‘the Presumption’
The headline proposal is to remove the presumption in favour of development that contributes to sustainable development, which was introduced in 2014 and has been the subject of extensive debate since then.
SPP provides that the presumption becomes a significant material consideration where relevant development plan policies are out-of-date, the plan does not contain relevant policies or the plan is more than five years old. It also provides that policies for the supply of housing land will not be considered up-to-date where there is a shortfall in the 5-year effective housing land supply.
In the Gladman case, the Court ruled that, in cases where there is a shortfall in the 5-year effective housing land supply, the presumption should be applied to create a ‘tilted balance’ in favour of any residential development. The balance can then be tilted towards refusal where the adverse impacts significantly and demonstrably outweigh the benefits of the development. The Gladman decision also clarified that the greater the shortfall, the greater the tilt in favour of residential development and the greater the adverse impacts required to redress that tilt.
A number of reasons for the proposed removal of the presumption are set out in the consultation paper. These reasons include the presumption having caused considerable confusion, the Court’s interpretation being inconsistent with the Scottish Government’s intention when introducing the presumption, the potential to undermine the primacy of the development plan and the likelihood of more plans exceeding five years in age due to delays caused by COVID-19 restrictions.
Additional points to note in the consultation paper, some of which arise as a result of the proposed removal of the presumption, include the following:
- It is proposed that there will no longer be specific policy provision for situations where a development plan is more than 5 years old, returning to the previous position where it was left to argue in specific cases and circumstances that material considerations should be afforded greater weight when the development plan was more than 5 years old.
- SPP will still expect planning authorities to maintain at least a 5-year effective housing land supply. However, it is proposed that the definition of “effective housing land supply” is updated to include all sites that are, or are capable of being, free of technical constraints within the period under consideration in normal economic circumstances. Planning authorities would be able to include sites which are, or will be, technically capable of development in their 5-year effective housing land supply, regardless of build-out assumptions for the site in the Housing Land Audit.
- The methodology for calculating the 5-year effective housing land supply is often a contentious issue in applications and appeals. It is proposed that SPP will now set out the method of calculation in an attempt to reduce the amount of debate. However, contrary to various appeal decisions, including the one which was the subject of the Gladman case, it is proposed that the method of calculation will not need to take account of shortfalls in previous years.
- It is proposed that any shortfall in the 5-year effective housing land supply will simply be a material consideration to be taken into account as part of the standard planning assessment. The weight to be afforded to the shortfall will be a matter for individual decision-makers but the proposed changes provide that the contribution the development proposal makes to addressing the shortfall, in scale and kind, should be taken into account to inform this judgment of the weight to be attached. This is significantly different to the current approach following the Gladman case.
The consultation paper states that the proposed amendments are interim changes ahead of the adoption of National Planning Framework 4 (“NPF4”), which will replace SPP. Publication of the draft NPF4 for consultation is now expected in September 2021, with the final version published in 2022.
Once the amendments to SPP are finalised, it is also proposed that section 2 of Planning Advice Notice 2/2010 on Housing Land Audits will be withdrawn.
As we noted in our earlier article, the Gladman decision was seen as a boost for those involved in delivering housing in Scotland. It is likely they will now see these proposals as an obstacle to the delivery of housing, particularly as the amendments proposed by the Scottish Government go further than the interpretation of SPP and the presumption put forward by them in the Court of Session. The Scottish Government can no doubt expect significant levels of representations from the housebuilding industry.
Greater clarity on the meaning of effective housing land supply and the methodology for calculating the 5-year effective housing land supply will at least be welcomed by planning authorities and Reporters involved in making decisions on residential developments. These issues often take up significant time during the application and appeal process for residential development.
Co-authored by Ambreen Rasool