In October 2024 three planning permission cases in which APRS has taken a close interest over a long period of time, were dismissed at appeal by DPEA Reporters. Planning permission was refused in each case. Unusually APRS had submitted objections and then representations on each of those cases because of the importance for Green Belt policy. Here, Nikki Sinclair explains the background and takes us through the main issues.
Background
The cases all involved proposals for housing on unallocated greenfield sites (meaning they were not allocated for development in the Local Development Plan). APRS comments and objections were submitted over several years against a background of change in the Scottish planning system. The cases have all approximately spanned the period from pre-pandemic when NPF4 was just a “call for ideas” or an early draft and planning decisions were shaped by Scottish Planning Policy 2014 (SPP 2014), up to the recent decisions in October 2024 a year and half after the adoption of NPF4.
Earlier APRS GBA updates have discussed the Scottish Government’s attempt to change the way housing proposals on unallocated sites were considered by amending SPP (back in 2020 via PAN 2020/1) and how this change was then quashed by a Court of Session decision in an appeal over a procedural error with the related consultation process. APRS had campaigned for those changes alongside local groups and Planning Democracy. This was prompted by enquiries from many communities who had struggled with the then system and were mystified by why it forced decision makers to give far more weight to housing land figures and calculations (which often felt ‘conjured up’) than to other more tangible policies and sustainability concerns. The adoption of NPF4 in early 2023 confirmed a change in approach to housing delivery (with a greater focus on delivering housing on allocated sites and increased requirements for affordable housing) as well as wider changes to national planning policy with a greater focus on climate and biodiversity.
Some of those changes have been challenged in the courts, the most high profile case perhaps being the Mossend appeal, over a planning application for housing on an unallocated site which had been called in and determined by Scottish Ministers.
All three of the planning appeals discussed here were paused or ‘sisted’ for many months while the Mossend appeal and the subsequent legal challenge were decided. The eventual Mossend judgement (which we wrote about here in July) considered how NPF4 policy 16 “Quality Homes” operates and was followed up by a letter from the Chief Planner (June 2024 – Planning for Housing) which is also relevant to these recent appeal decisions.
The three cases that APRS took a particular interest in were part of a larger group of similarly sisted appeals, more than 10 of which (all relating to proposed housing development on unallocated sites) have also recently been dismissed and planning permission refused. There should now be more certainty over policy 16, allowing all involved to focus on delivering the new system.
Worryingly, some development industry voices are still apparently calling for a return to the policy position prior to NPF4 – which included a loophole in the now defunct SPP “presumption in favour of sustainable development”. This would be a massive backward step given that the presumption, as it was interpreted, often favoured the granting of planning permission for housing on unallocated sites when allocated sites in the LA area were not being built out as fast as expected – despite other environmental and infrastructure considerations.
We were glad to see the recent publication of the Planning and the housing emergency: delivery plan by the Scottish Government which directly addresses this point and emphasises the work done to strengthen the plan-led system and its intention that “This will ensure that homes are built in planned locations which will better meet people’s needs and avoid building in unsustainable costs for the longer-term.”
Summary of three appeal cases
The three appeals covered here involved sites on the edge of Bridge of Allan (Stirling), and Dechmont (West Lothian) and South Edinburgh (City of Edinburgh). APRS got involved to varying degrees in each case to give advice to locals seeking support for their grassroots campaign or advice on how to understand the planning process, the various relevant policies and how these were potentially changing at the time. We have added case study reports as Resources on the APRS website for Blairforkie and Burnhouse Farm (links below) and Ferniehill will be uploaded soon)
All three planning cases happened to be ongoing at the time it was becoming more firmly anticipated that NPF4 would see the end of the “presumption in favour of sustainable development “ and the so called “tilted balance”. At the time many adopted LDPs were going out of date (partly due to covid and delays with planning reforms) which increased the likelihood of developers wanting to take an opportunity of a weakened plan-framework to push for permission on developments that might not have been passed otherwise (the Edinburgh LDP was an example of this as it dated from adoption in November 2016). To APRS there seemed to be a rush of cases that hastened to appeal, presumably due to developers hoping they might get through the system prior to NPF4 being adopted. Whilst the Dechmont case was appealed after the LA rejected it, Blairforkie and Ferniehill were both appealed for non-determination.
There was some variation across the three appeal processes as to how “interested parties” other than the appellant and the planning authority were treated and offered opportunities to comment at different stages post NPF4 adoption. In one case there was a requirement to “opt-in” to continue to be involved.
In each of the three appeals the principle of development was considered and in each case NPF4 policy 16 (f) was found to be relevant as the sites were not allocated and the criteria set out in 16(f) that could give support to development on unallocated land in certain circumstances were not satisfied. In each case the Reporter highlighted other NPF4 policies as being important in the particular decision in addition to policy 16, which helps to give an indication of how the Chief Planner’s instruction to consider NPF4’s policies as a whole is being interpreted. A summary of the key polices considered in each case are given below.
Case 1: Blairforkie, Stirling
Planning case PPA-390-2083
1. The Reporter cited NPF4 Green Belt policy (policy 8) and brownfield/greenfield policy (9(b)) as giving no support for the proposal
2. Quality Homes policy 16(f) criteria for developing on unallocated sites were not satisfied and 16(f) gave no support, whilst other parts of policy 16, including 16(c), gave only limited support as the development of an allocated site could provide the same range of housing.
3. The housing emergency, was mentioned as a material consideration but it was noted that there is no instruction to depart from NPF4 in these circumstances and the benefit of development would not outweigh the conflict with the development plan.
4. Finally, the development would have a significantly harmful effect on the amenity of users of an adjacent designated core path, known as the Darn Walk, which runs through woodland between the appeal site and the Allan Water. “As such, it would conflict with LDP primary policy 9.”
More information can be found on the Blairforkie case on our website.
Blairforkie, Bridge of Allan, Planning Case Study
This case study looks at the history of the planned development at Blairforkie Drive, Bridge of Allan, and the refusal of the subsequent appeal.
Case 2: Highfield, Ferniehill, City of Edinburgh
Planning Case PPA-230-2387
1. The principle of development was not established due to the unallocated location and the Green Belt designation, the greenfield location and the agricultural soil. Despite a degree of support for the proposal from some policies it was found to be contrary to the development plan overall.
2. The reporter was not persuaded by the appellant’s argument that NPF4 policy 8, due to a slight change in wording in the policy about Green Belt from that in SPP, would not apply to a Green Belt which been designated in an LDP prior to NPF4 (rather than in a “new style” local development plan ie a post NPF4 LDP).
3. The fact that the land is not in agricultural use now does not change its classification as prime agricultural land and difficulties with using the site for agriculture currently are not listed in NPF4 as an exception that supports development.
4. Compliance with biodiversity policy 3 was not demonstrated by the proposed development as despite some proposed mitigation measures to compensate for the biodiversity that would be lost to development there were no proposals for ensuring restoration or enhancement and specifically there was no confidence that simply applying a condition that “seeks biodiversity enhancement” would meet the “demonstrably better” expectation for the state of biodiversity that is set out in NPF4 policy 3.
More information on this case will be uploaded shortly as a Resource onto our website
Case 3: Burnhouse Farm, Dechmont, West Lothian
Planning Case PPA-400-2148
1. The Reporter cited NPF4 policy 5(b) prime agricultural land and policy 9(b) on unallocated greenfield sites as being contrary to the proposed development.
2. The housing policy 16(f) dealing with potential development on unallocated land was not satisfied.
3. The proposal would cause adverse landscape and visual effects and adverse effects on the Bathgate Hills SLA such that it is contrary to NPF4 policy 4(a).
4. The proposal was also contrary to NPF4 policies 13 and 15 on sustainable transport and local living.
More information can be found on the Burnhouse Farm case on our website.
Burnhouse Farm, Dechmont, Planning Case Study
This case study looks at the history of the planned development at Burnhouse Farm, Dechmont.