Planning matters

We now know, following the release of long-awaited Court of Session (Scotland) judgment, that Miller Homes vs Scottish Ministers, known more commonly as Mossend, has been dismissed and the period for appeal has passed without challenge being lodged. As explained in our November edition of the Scotland Planning News, the appeal concerned a called-in application for around 250 homes on an 18.45 ha unallocated greenfield site in Mossend, West Lothian.

The court heard an appeal against the Scottish Ministers’ decision to refuse permission based on the principle that policy 16 (f) of National Planning Framework 4 (NPF4) overrides land release policies in Local Development Plans adopted prior to NPF4. Key to the case were questions around whether Policy 16 could reasonably be applied without new-style Local Development Plans prepared in its wake to include local housing targets and measurable delivery pipelines. There were also questions around whether extant LDP targets for 5-year effective supply were incompatible with the Minimum All-Tenure Housing Land Requirement (MATHLR), as set out in Annex E of the NPF4.

This blog explores some implications of the Mossend judgment on planning for housing delivery in Scotland in the short-to-medium term, whilst local authorities work to produce new-style LDPs under not only a new system of plan-making[1], but also under a new system of development management in which the policies of NPF4 are central. The lack of challenge to the judgment within the appeal period means the practical implications of this Judgment can only be overridden – at least in the short term - by a statement from the Scottish Government pointing towards a new policy direction.

The case yields the first (of many, perhaps) legal discussions concerning the relationship that the policies within NPF4 have with local development plans that have not been prepared with NPF4 in mind (‘old-style plans’).

Uncertainty around these issues has been plentiful since NPF4 was adopted in that there are limited transitional arrangements, legal or otherwise, from the old to the new system. Therefore, the value of this Judgment was always going to lie in the detail and the discussion.

In dismissing the appeal in favour of the Scottish Ministers, the Lord Boyd PC confirms:

1. Where an inconsistency arises, Policy 16 (f) of NPF4 (which considers new homes on land not allocated in an LDP) overrides housing land release policies in old-style LDPs adopted prior to NPF4.
   
   
2. Where it is considered to be the most up-to-date position, the MATHLR is the local housing target[2], until such time as the authority adopts a new Local Housing Land Requirement as part of a new-style LDP, which may exceed the MATHLR.
   
   
3. Under an old style LDP, a Delivery Programme (a document required by NPF4 as part of the new-style LDPs) can be provided and these establish a delivery pipeline.

With points 2 and 3 in mind, the judgment says:

The above alludes to a situation in which the MATHLR may not be considered the most up to date target. This is discussed in more detail below.

NPF4 abolished the presumption in favour of sustainable development in Scotland. The effect of this is that development proposals not anticipated by the adopted development plan no longer benefit from a specific policy route to be considered on their merits to assist with housing delivery. This is an issue which will come to the fore especially where housing delivery falls short of the target and adopted sites are unable to be unlocked[3].

This has an effect on the certainty with which housing development can come forward in the country. Until new-style LDPs are adopted which tesselate with NPF4 to form the development plan for an area, we might expect housing approvals delivery in Scotland to slow down further[4], since general under-delivery may no longer be able to be remediated through speculative development in under-performing authorities. Instead, it is possible that the sector will look to areas afforded more certainty by NPF4 policies, such as energy development.

NPF4 stipulates that housing on unallocated land only be released in particular circumstances. The circumstances relevant in Mossend were: if the proposal were to be supported by an agreed timescale for build-out, if the proposal was in accordance with other relevant policies, and whether delivery of sites was happening earlier than identified in the deliverable housing land pipeline. On the final point, two consecutive Housing Land Audits would be required to demonstrate substantial early delivery of the pipeline for this provision to be activated.

The ‘delivery programmes’ are required under NPF4 to be published alongside new-style Local Development Plans to establish the pipeline of housing delivery in a local authority. As noted above, there is scope for Local Authorities to establish delivery programmes under their extant LDPs. These will be monitored through the Housing Land Audits which will establish whether early delivery is occurring, and intervention is necessary to release additional land. There is, however, no mechanism in NPF4 for intervention in the event of under delivery.

A 2019 Scottish government research report[5] found in the context of this growing importance of HLAs, “that the current suite of HLAs across Scotland is not consistently defined, researched, analysed, consulted on, tested, reported or integrated with development planning or delivery.”

Reliance on HLAs may have unintended consequences, not least because they could yield an inflated pipeline, leading to under-delivery which is unable to be offset by sufficient allocation of land for housing, in the context of a lack of presumption.

Within his Judgment, the Lord Boyd PC alludes to the ability for authorities to adopt interim delivery statements to supplement action programmes in old-style LDPs. As the Judge points out, this is allowed for in the transitional provisions.

It may be that more local authorities will release an interim delivery programme to address concerns around the implications of Mossend. This could prevent a situation where an authority’s development plan does not address housing delivery in the way NPF4 foresees, meaning their pipeline is not able to be considered in the determination of a planning application and the ability to plan locally for housing dwindles.

Producing these documents would have resourcing implications, however. Some authorities may decide that such resource is best directed towards the preparation of a full new-style LDP, given the incompatibility issues that might arise with planning policies aside from housing on unallocated land, as NPF4 beds in across the country.

Development on land that has been planned for, based on evidence, is something that the planning system holds paramount. However, Mossend comes at a time when housing emergencies are being declared across local authorities in Scotland. Indeed, the Scottish Government itself declared a national housing emergency on 15 May 2024 [6].

With an expected significant time lag before full coverage of ‘new-style’ LDPs is achieved, there is an argument that the stick must be proportionate to the carrot, assuming a significant amount of land needed to deliver housing remains unallocated prior to widespread new-style LDP coverage. Commentators have pointed to the fact that housing delivery in accordance with the MATHLR would fall significantly short of meeting housing need in Scotland.[7] Therefore, only once significant new-style LDP coverage is achieved, and local housing targets are revised to comply with NPF4, will it be possible to analyse whether the latest iteration of Scotland’s planning system is capable of delivering the homes people need.

As mentioned in the introduction, the practical implications of Mossend, as discussed in this blog, can now only be overridden by a statement from the Scottish Government. Lichfields will continue to monitor this alongside any other potential case law that could challenge Mossend.