Important Planning Case rejected in Court

An important Planning Appeal in the Court of Session which would have impacted on the protections for Green Belt that APRS fought for in the National Planning Framework 4, has been refused.


This case is important because it was a test of some key changes in National Planning Framework 4. It was of great interest to the volume house builders because it related to a change in the way that housing need was calculated. Under the previous planning framework, if sites that had been allocated for housing in the Local Development Plan weren’t being built out fast enough, developers could get permission for houses on unallocated sites, including Green Belt land. This piece of policy produced perverse incentives to not build on allocated sites so that it was more likely that permission would be given on green field sites, which are often cheaper to build on.

The new NPF4 changed this to the opposite position, which is that new sites wouldn’t be allocated if the existing sites are being built out at a slower than expected rate.

This challenge from Miller Homes was about using previous planning guidance until new Local Development Plans are published, and this is the case that was rejected.

APRS has been campaigning for many years to remove this anomaly from planning law and we are delighted that this case confirms that this new policy stands. Local Authority now have better levers to determine where new houses will be build according to need and future demands.

The Case

In mid-May 2024 APRS received a letter from a case officer at the DPEA about the planning appeal over a proposed residential development on a Green Belt site at Ferniehill on the southern edge of Edinburgh. That appeal had been sisted (paused) for many months pending the decision of the Court of Session in the case of Miller Homes v Scottish Ministers (the ‘Mossend Appeal’), given its potential wider relevance to how the housing policy in NPF4 is interpreted.  The court of Session had dismissed Miller Homes’ appeal but the letter detailed that the Ferniehilll appeal would remain sisted during the 28 day period following the Court’s decision, within which period Miller Homes could seek to appeal the decision to the Supreme Court.  

APRS now understand that the Court of Session’s decision has not been appealed, so it seems timely to consider the Mossend decision and its potential consequences. We expect the DPEA case officers dealing with the sixteen or so similar appeals that have been sisted, like Ferniehill, to indicate that they are being ‘un-paused’ relatively soon. It may well be that the Reporters will ask interested parties in those appeals for further submissions on the particular case in the light of the court’s findings on Mossend.

Court of Session’s Decision

The Court of Session’s opinion on case [2024] CSIH 11, XA41/23 was published on 3 May 2024, and can be viewed on the Court’s website here. The appeal was refused. APRS welcomes the Court of Session’s decision, which gives clarity on the operation of housing policy in NPF4 and how it relates to existing Local Development Plans (LDPs).

APRS welcomes the Court of Session’s decision, which gives clarity on the operation of housing policy in NPF4 and how it relates to existing Local Development Plans (LDPs). The appellants (Miller Homes) had claimed that NPF4 Policy 16f could not operate until new LDPs were in place. As a result they suggested that until new LDPs were adopted, elements of housing policy from the Scottish Planning Policy (SPP – which was replaced by NPF4 in February 2023) should be used to consider some planning applications. These elements included the ‘tilted balance’, maintaining 5 year effective housing land requirements and previous housing targets (based on older data than that used in developing the new targets, ‘the MATHLR’ set out in NPF4 Annex E). 

The Court decision completely rejects the appellants submission and supports the use of policy set out in NPF4. It says: 

Policy 16 states that development proposals for new homes on land allocated for housing in LDPs will be supported. Development proposals for new homes on land not allocated for housing in the LDP will only be supported in limited circumstances. So far as relevant here these are where the proposal is supported by an agreed timescale for build-out, the proposal is in accordance with other relevant policies and where delivery of sites is happening earlier than identified in the deliverable housing land pipeline. This is to be determined by reference to two consecutive years of the Housing Land Audit evidencing substantial delivery earlier than pipeline timescales and that the general trend is being sustained. In other words the policy is designed to bring forward more land where the supply of land to meet the target is being met more quickly than envisaged in the delivery programme.” 

This is the opposite of the policy set out in SPP previously, where delayed or slow build out of housing on allocated sites with (or awaiting) planning permission could result in speculative planning applications on unallocated sites being approved. The Court found that housing policies in adopted LDPs which referred to exceptional release to maintain a five year effective land supply, to SPP or to housing land targets in Strategic Development Plans (now abolished) were inconsistent with NPF4 and therefore NPF4 policy took precedence as it was the more recent plan in date.

The Court found that these changes to the development plan move housing policy away from disputes over numbers, to an approach which seeks to provide housing in suitable locations, for example in 20 minute neighbourhoods. It also stated that looking at the policies as a whole there is an emphasis on quality, diversity and sustainability.

The Court also clarified that it had not previously determined that the overall purpose of the development plan is to stipulate that the housing need in the area is to be met. Instead, the court pointed out that the purpose of planning is “to manage the development and use of land in the long term public interest” and that, “A plan led approach is central to supporting the delivery of Scotland’s national outcomes and broader sustainable development goals”.

The Court also commented on the requirement for a deliverable housing pipeline to be set out in new LDP delivery programmes before one bullet point in policy 16 (16 f iii, first bullet) can operate as it specifically references a ‘deliverable housing land pipeline’. The decision makes clear that this does not mean that section 16 cannot operate at all as the appellants had suggested. It also notes that regulations are in place for local planning authorities to review the existing action programmes relating to old LDPs, to update them and publish as them as delivery programmes ahead of adopting a new style LDP and points to Aberdeen City as having done this.

The Court also backed the approach taken by the original appeal reporter and in the decision by Scottish Ministers, who dismissed the planning appeal in July 2023, in concluding the application was additionally not compliant with various other policies in both NPF4 and the adopted LDP.

What this decision means

The Court’s decision was recently welcomed by Ian Aikman, Chair of Heads of Planning Scotland, whilst giving evidence to the Scottish Parliament’s Local Government, Housing and Planning Committee on NPF4, as providing certainty about implementation of the new housing policy and allowing the focus now to be on its delivery.  

We hope that this means that planning policy on housing, environment and community engagement is no longer rendered all but pointless in comparison to convoluted arguments over disputed housing land calculations and that this policy results in more focus on delivering sustainable housing solutions. It is also hoped that it is a small step towards building more trust within communities that the effort of engaging with the planning system is worthwhile. 

We also note that this change to housing policy is fairly similar in effect to the changes made to SPP in December 2020 by the Scottish Government which were subsequently quashed by an appeal over the adequacy of the consultation over those changes.  So, whilst this new housing policy was only adopted in February 2023, the proposed direction of policy change has been clear for a while.

In terms of Green Belt areas, the decision provides more confidence that the stated purposes and policy outcomes of designating Green Belt in an LDP may get more attention, including that of supporting nature and managing land to help tackle climate change. The other outcomes are preventing unsustainable growth and protecting and enhancing the character, landscape, natural setting and identity of settlements. 

There is no statement in NPF4 Policy 8 that Green Belt areas should be treated as a long term reserve for land for large-scale new housing. That said, boundary changes to Green Belts may be made to accommodate planned growth in the preparation of new LDPs. The requirement for land for nearly all new housing to be allocated in LDPs will likely increase pressure for allocations, particularly from builders of market-sale housing for their preferred sites to be allocated. 

To increase the likelihood of that happening much effort will be put into persuading local authorities of the need to increase the Local Housing Land Requirement (LHLR) greatly above the MATLHR figure for the area (the land for housing target set out in NPF4 Annex E). Alive to the housing emergency, it will be a sensitive issue. 

However, as well as all the complexity involved in the problems of access to decent housing, it needs to be remembered during discussions over targets and how much land needs to be allocated for housing, that the MATHLR already includes a greater percentage uplift (so called ‘flexibility’ of 25-30%) to allow for the difficulty of building out some allocated sites. Also, if in future a local authority area finds that allocated sites are being built out at a higher rate than anticipated then the new exceptional release policy in NPF4 16 f will kick in. 

The other types of housing development that can already be supported on unallocated sites are those that are consistent with the policy on rural homes (Policy 17); proposals for smaller scale opportunities within an existing settlement boundary; and proposals for the delivery of <50 affordable homes as part of a local authority supported affordable housing plan.

Key points arising for planning applications/appeals

Applications for housing should not expect to be successful if justified using arguments based on superseded Scottish Planning Policy.

An application for planning permission is to be determined in accordance with the current development plan, (the LDP and NPF4 together) unless material considerations indicate otherwise. One material consideration might arise if there was a perceived gap (‘lacuna’) in the development plan, or if the development plan was out of date or the planning authority had failed to update the delivery programme.

Until a new LDP is in place, the MATHLR set out in NPF4 represents the most up to date target for housing land within the development plan.

Where there is an incompatibility or inconsistency between an LDP policy and that in NPF4, the more recent in date will prevail.

For further information about NPF4, the need for planners to consider it ‘as a whole’ rather than individual policies, and how this may be applied to areas designated as Green Belt in LDPs see the APRS Advice Note on Green Belts.

Key points arising from the decision for LDP reviews

There is an expectation that the MATHLR will be exceeded in each LHLR (the Local Housing Land Requirement which is to be set out in the new LDP), but the MATHLR is nonetheless the target. The LHLR is expected to exceed the MATHLR but it is not a necessity that this happens.

The Court says the MATHLR is the minimum amount of land by reference to the number of housing units to be provided by each planning authority in Scotland for a 10 year period. We would add that the “AT” refers to All-Tenure (eg for market sale, market rent, affordable, social housing etc). The MATHLR figures already include a 25-30% uplift to allow for the difficulty in some allocated sites being built out.  It is a target for allocating land, not a target for the number of housing units to be built in 10 years. Local Authorities (LAs) produce local housing strategies which contain more detail on housing provision.

The change in policy means that the allocation of sites will be key in most cases for obtaining planning permission for new housing developments and particularly for volume housing built for market sale. Pressure during LDP reviews on LAs to allocate developers’ most preferred and potentially lucrative sites is likely. However, other NPF4 policies indicate that re-use of existing buildings and previously developed land rather than greenfield sites is encouraged.

Local Authorities should produce a Housing Land Audit every year.  These are usually available on the LA website and provide a snapshot of the progress of allocated sites ie how many homes have been built each year. Under NPF4, successive Housing Land Audits will be used to indicate whether the housing pipeline of allocated sites is being built out faster than expected over a sustained period.  TheScottish Government is likely to update guidance on Housing Land Audits before long.

Depending on how soon a LA expects to complete a review of its LDP, it may  decide to revise and update an existing LDP action programme and following consultation, publish it as a new-style Delivery Programme. This would set out a deliverable housing land pipeline (with short (1-3 years), medium (4-6 years) and longer term (7-10 years) allocations).

Following the Mossend Decision, APRS has sent letters to Scottish Government regarding two cases we Objected to that had been sisted

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