Summary

• Land At Burnhouse Farm, Burnhouse, Dechmont, West Lothian, EH52 6NB
• Appeal by Springfield Properties PLC against refusal of application (0241/P/22) dated 24 Mar 2022 (date of decision: 11 Aug 2022)
• Development proposed: Planning Permission In Principle For A 12.3 Ha (Around 160 Homes) Residential Development With Associated Infrastructure, Landscaping And Engineering Works
• Decision Notice:16 October 2024

Case Details

In late December 2021 APRS received an enquiry about a potential planning application for speculative housing on unallocated land in West Lothian. The site was part of a Special Landscape Area in the LDP and on agricultural land. Part of the site was included in the Countryside Belt designation in the West `Lothian LDP 2018 which is intentionally similar to a Green Belt designation.

The site was also very close to a much larger planned (allocated) residential development on the site of the old Bangour hospital. Initially APRS provided guidance on responding to planning applications and a copy of the APRS Advice Note on the Planning System.

APRS Objection

APRS submitted an objection to the planning application 14 April 2022 noting the site was not allocated in the LDP, it was designated as a Special Landscape Area and partially as Countryside Belt and also referred to proposed policies in the draft NPF4.

The Application for planning permission in principle 0241/P/22 dated 24 March 2022 was refused by West Lothian Council in a notice dated 11 August 2022.

By early September 2022 an appeal had been submitted by Springfield Property ltd and this had been validated by the DPEA and a reporter appointed.  Requests for further representations to some interested parties were sent.  

APRS responded to a request for some advice by the community council on recent appeal results in West Lothian and on the housing land figures for West Lothian as it seemed likely that the appellant was relying on the presumption in favour of sustainable development in SPP for support and would seek to persuade the decision makers that West Lothian did not have an adequate effective housing land supply. We assumed that the developer would try to make the case for housing land supply calculations to be made on the basis or the compound/residual method instead of the average method and to use the housing land requirement figure as a basis rather than the housing supply target.  The difference between the two methods (and figures) could sometimes be enough to swing the “tilted balance” over housing land numbers and potentially result in the approval of what would otherwise be seen as an unsustainable development. We put forward evidence indicating there was more than a 5 year supply of effective housing land and that this supply could be further supplemented from the existing established supply without the need for additional sites to be allocated or given permission. This was in the context of the West Lothian LDP being technically ‘up-to-date’ but the relevant strategic plan, SESplan, being more than 5 years old (SESplan2 having been rejected by Scottish Government) whilst the anticipated production of NPF4 had been much delayed, in part by the pandemic. 

Additional submission

The Community Council requested and were granted a month’s extension to respond to the appeal so they could better canvas local opinion given the large number of residents who had commented on the planning application. During this time it emerged that only the Community Council could submit evidence at that late date so it agreed to include letters from others, including one from APRS (21 October 2022) as an annex to its submission.

In November 2022 a revised draft of NPF4 was published and laid in the Scottish Parliament. The same month the Reporter advised interested parties there would be an appeal hearing or inquiry session and offered them the chance to take part. An unaccompanied site visit was made by the Reporter. Then the appeal was briefly sisted (put on hold) as it emerged that some of the large number of interested party representations had not successfully been transferred from the LA to the DPEA. The list of parties was resubmitted and a letter requesting a further ‘opt in’ to the process was sent to all of them from the DPEA with a deadline in early January 2023.

On 10 February 2023, just prior to the adoption of NPF4, the Reporter asked interested parties for further views on the appeal in the light of the final version of NPF4 and the transitional arrangements that the Scottish Government had by that time set out. The appellants responded with a great many documents including some from another ongoing appeal in West Lothian (the Mossend appeal) where the developer’s agent had sought legal advice from a King’s Counsel over how NPF4 housing policy might be interpreted given the LA had an LDP that had been produced under SPP and the previous guidance rather than under NPF4. All parties concerned then had an opportunity to comment on the others’ submissions.

In April 2023 the DPEA wrote to interested parties to inform them that the Burnhouse Farm appeal had been sisted once more whilst Ministers determined another residential development appeal (Mossend, PPA-400-2147) in West Lothian which they had recalled as submissions in that case directly challenged the application of all elements of NPF4 Policy 16 prior to adoption of ‘new style’ LDPs. Ministers considered that this raised national issues in terms of the application of NPF4. “Recalling the appeal for Ministers’ own determination will provide an opportunity for Ministers to set out, in their decision letter, more detail on how the policy [policy 16] should be applied.”  Other appeals related to housing developments on unallocated sites before the DPEA were placed in sist pending the Ministers’s decision because “decisions by individual Reporters in those other cases mustn’t prejudice or otherwise undermine the pending ministerial decision”.

On 20 July the DPEA wrote again to parties asking for further submissions in the light of Ministers’ decision on the Mossend appeal which had just been issued, dismissing the appeal. After submissions were received, parties had time to comment on submissions.

Appeal sisted

On 1 September 2023 the DPEA informed all involved that the appeal had again been sisted “to allow the Court of Session to determine an issue of interpretation of new planning policy likely to be relevant to this appeal.” The reference was again to the Mossend appeal, previously dismissed by Ministers and then appealed to the court by Miller Homes. (See article about Mossend).

The Court of Session heard the Mossend case [2024]CSIH11,XA41/23 in January 2024 and published its opinion on 4 May 2024. In general, it supported the Ministers’ interpretation of policy and the dismissal of the Mossend appeal.  It gave some further clarification about the changes to housing land policy under NPF4 and underlined that SPP was no longer relevant in planning decisions whether or not a local authority had produced a new LDP post-NPF4.

On 8 May the DPEA wrote to 251 interested parties in the case to let them know that the appeal would remain sisted until it was clear that Miller Homes were not going to appeal the Mossend case further. Only at this point, at the start of July 2024, the sist was lifted and the appellant, authority and interested parties including APRS were asked for further submissions relating to the bearing on the case of three documents:

• the Scottish Ministers’ decision on Mossend,
• the court’s opinion on that decision and
• the Chief Planner’s letter, sent following the court’s decision.

The APRS response set out our view that ”the Scottish Ministers’ decision on Mossend is relevant to the Burnhouse Farm appeal in that it sets out the context as to how an application on unallocated land might be supported under NPF4 Policy 16 and decided that the Mossend application did not meet the necessary criteria for support. Our view continues to be that neither does the application at Burnhouse Farm and that this appeal should also be dismissed.” We also referred to policy 9(b) and policy 8, discussed the Chief Planner’s letter and referred to the latest Housing Land Audit.  The full APRS letter can be read below.

Then all interested parties were asked for any additional comments on the other parties’ most recent submissions, to which APRS responded very briefly on 1 August noting that the local authority had recently published a housing delivery programme.

Appeal refused

The Reporter’s decision notice was published on 16 October 2024 with the appeal being dismissed and planning permission refused. The determining issues in this appeal were stated as being: 

• The principle of housing development at the appeal site, (the siting of the proposed development on an unallocated greenfield site and prime agricultural land, would be contrary to the following development-plan policies: NPF4 policy 5(b), 9(b) and 16(f).)
• Whether evidence on the level of existing housing need justifies development of an unallocated site, (did not find evidence of a need for additional housing land such that it requires those policies to be set aside)
• Landscape and visual effects of the proposed development, (adverse landscape and visual effects and adverse effects on the Bathgate Hills SLA such that it is contrary to NPF4 policy 4(a) and WLLDP policies DES 1 and ENV 1), and
• Compliance of the proposed development with policy on local living and sustainable transport (contrary to NPF4 policies 13 and 15 on sustainable transport and local living and to WLLDP policy NRG 1).

Key points from the Burnhouse Farm appeal decision notice

In assessing the principle of development the reporter referred to the Mossend appeal decision and subsequent court opinion  [Miller Homes Ltd v Scottish Ministers [2023] CSIH 11.] They found that the proposal’s failure to comply with the policies over siting and to meet the criteria in NPF4 16(f) was sufficient to justify refusal.  The adverse landscape and visual effects and being contrary to policies on sustainable transport and local living were additional points which together with the concerns over siting, outweighed any benefits of development or support for achieving those benefits in the development plan.

So the greenfield site meant the proposed development was contrary to NPF4 policy 9(b) and the majority of the site is also classed as prime agricultural land so the proposal was also contrary to NPF4 5(b).  The fact that it is currently used for livestock did not affect its classification based on the Macaulay Institute maps which are the recognised standard for identifying prime agricultural land and which are referred to in NPF4.

The decision considered arguments around housing need in some detail but stated that new assessments of the level of existing need can be considered in the process of creating the next local development plan and that additional housing land can be provided in that process too. It also considered the robustness of some reports on estimated housing need which were cited by the appellant.

The WLLDP 2018 countryside belt designation which covers a small portion of the site was not mentioned.