News
Scotland planning news, August 2020
05 Aug 2020
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Developer consortium successfully challenges housing policy
A consortium of housing developers has won a legal challenge against the decision of Inverclyde Council to adopt its Local Development Plan (LDP). The decision by the Court of Session also brought to attention a number of errors by a reporter, and sets out the correct approach to calculating Housing Land Requirements under an LDP examination.
The challenge was brought against Inverclyde Council on six grounds, with Scottish Minsters being an interested party.
The appellants asserted that the methodology used by Inverclyde Council to calculate the authority’s housing land supply was flawed; furthermore, the authority had also failed to properly account for a “generosity allowance” to be applied to its Housing Supply Target. It was also argued that the LDP had not made sufficient provision for private tenure housing; whilst also failing to identify sufficient Housing Land Supply (HLS) for different market areas for the two periods in the Strategic Development Plan.
The council’s LDP had been adopted in 2019. The appellant had particular issue with the Technical Report that informed the chapter in the plan regarding the supply of land for housing. The council had applied two different methodologies for calculating the Housing Land Requirement for the area of Inverclyde that fell within the Renfrewshire Housing Sub market Area (HSMA).
Both an annualised approach and a compound approach were included within the Technical Report. The annualised method divided the HLR into an annual figure and calculated a 5- year amount. This resulted in a shortfall. The combined approach, however, took the Housing Supply Target across the relevant plan period, deducting the houses which had already been completed. This method did not result in shortfall.
At the LDP examination, the reporter stated that a decision on which was the most appropriate methodology for determining this particular HSMA could not be settled through the examination of a single LDP. The LDP needed to ensure that sufficient sites were allocated to meet the authority’s HLR, and the reporter had been satisfied that the LDP achieved this. Any shortfall could be addressed by LDP Policy 17, which stated that the authority would carry out an annual audit in order to ensure a 5-year effective housing land supply.
As such, the council relied on the compound approach for determining the HLR for that particular HSMA, which resulted in it not needing to release more green field sites in the Kilmacolm and Quariers Village settlements.
Finding against Inverclyde Council and Scottish Ministers, the Court deemed this to be incorrect. Whilst a compound approach may have been appropriate, it was a matter of planning judgment, and no such judgment had been exercised by the reporter.
It was incorrect for the Examination Report to not consider this and identify the appropriate method; whilst reference to Policy 17 was not an appropriate way to address the consequences of this.
Lord Carloway’s judgement said:
“In short Policy 17 is not a safety valve which permits an LDP to avoid compliance with the SDP so far as achieving the HLR figures as at its date of adoption. It does not of itself do anything to secure that compliance.”
On the generosity allowance, the reporter had excluded completions when applying the 15% uplift, effectively reducing the council’s HLR. Lord Carloway, however, agreed with the appellant, ruling that the approach taken by the LDP and accepted by the reporter was incorrect.
“The fact that a certain number of houses have been completed does not result in the generosity margin being removed from the number of these completions.”
Lord Carloway also found that the Examination Report had failed to determine whether the private tenure HLR in the different market areas would be met. It was insufficient for the reporter to make a general finding only in relation to the all-tenure figure of the LDP, rather than taking into account whether the plan would achieve the HLR for each discrete HMA and HSMA. By not having regard to the allocations of the mixed tenure sites in the Technical Report, the accuracy of the calculations that produce the HLR for each area came into question.
Furthermore, evidence put before the reporter had revealed shortfalls in the all tenancy and private figures for both periods in the SDP, as well as in both the Inverclyde HMA and the Renfrewshire HSMA. This evidence was capable of being a material consideration. Whilst the interested parties maintained that the reporter was entitled to ignore this, given that it had been submitted at a late stage and was produced in a request for further information which it had failed to answer, the reporter had not stated whether or not this information had been ignored, or provided any reasons as to why they may have done so.
On the basis of these various material errors, the Lord Carloway allowed the appeal and quashed the relevant chapter within the LDP on housing need.
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Quote of the month |
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The context for planning for housing in Scotland has changed significantly in recent months. The pandemic is having an impact on the ability of planning authorities to maintain the review cycle of local development plans within the timeframes they intended. We expect that more development plans will extend beyond five years in the coming months and are keen to support authorities in adapting to the current circumstances. The pandemic is also affecting delivery programmes and the rate of housing completions. This, coupled with revised plan timescales, has implications for the plan-led approach to development. |
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Scottish Government launch draft consultation on 'The Scottish Planning Policy and Housing
The Scottish Government has launched a technical consultation ahead of the publication of the draft NPF4, which is currently scheduled to be released in September 2021. The paper will set out Scottish Ministers’ proposals to amend and refine elements of the Scottish Planning Policy (SPP) related to housing supply.
This interim consultation seeks views on Scottish Minister’s intention to remove the following sentence of the SPP:
“This SPP introduces a presumption in favour of development that contributes to sustainable development.”
A further two references to the presumption under paragraph 30, 32 and 33, are also proposed to be deleted from SPP.
The consultation states two reasons for this decision. Firstly, the effects of the COVID-19 pandemic on planning authorities’ ability to maintain the cycle of development plans within the intended timeframes, and the impact the pandemic has had on the rate of housing completions.
Secondly, the implications of the recent judgement passed down by the Court of Session in Gladman Developments Limited v The Scottish Ministers. The case confirmed the application of the ‘tilted balance’ set where relevant policies in a development plan are deemed to be out-of-date, when a five year supply of housing land cannot be demonstrated. A summary of the case can be found here.
Ministers now believe this requires “clarification”, so as to “actively address the lengthy technical debates we are seeing about the numbers of homes that we will need in the future.”
This effect of this could have a significant impact on the way unallocated sites are determined where there is not an effective supply of housing land. However, Scottish Minister’s suggest they wish to provide a clear basis for decisions on applications, whilst clarifying what is meant by a 5 year effective housing land supply.
Scottish Government, proposed policy amendments - consultation
Relaxation of planning rules for outdoors spaces
The Scottish Government has announced its plans to extend the current Help to Buy scheme until March 2022. It expects the scheme to support a further 2,000 households to purchase new homes through an additional £55 million of funding over the 2021-22 period.
Housing Minister Kevin Stewart commented:
“A strong and growing house-building industry is vital to Scotland's future economic prosperity – and particularly as we plan our strategic economic recovery from COVID-19. This extension will provide us with the opportunity to reassess future priorities for the market, taking account of economic conditions following the pandemic, as well as providing a helping hand to those seeking to buy their own home.”
Scottish Government, Extension to Help to Buy (Scotland) scheme
Phase 4 for construction sector’s restart plan
Scottish Government has updated its guidance on construction sites, confirming the sector is able to move into phase 4 of its Construction Re-Start Plan.
As assurances have been made that sufficient supplies of PPE are available for the NHS, phase 4 of the construction industry’s Restart Plan was introduced 15 July 2020. This will enable sites to operate “where physical distancing can be maintained and/or with PPE use.”
This is the penultimate stage before work can proceed at increased density/productivity.
Scottish Government, COVID-19 Construction Sector Guidance
Disclaimer: This publication has been written in general terms and cannot be relied on to cover specific situations. We recommend that you obtain professional advice before acting or refraining from acting on any of the contents of this publication. Lichfields accepts no duty of care or liability for any loss occasioned to any person acting or refraining from acting as a result of any material in this publication. Lichfields is the trading name of Nathaniel Lichfield & Partners Limited. Registered in England, no.2778116