Scotland planning news, July 2020


Scotland planning news, July 2020

02 Jul 2020



Headline news



Landmark judgement on tilted balance

The Court of Session has handed down a significant judgement that provides clarity over the application of the ‘tilted balance’ set out under para 33 of Scottish Planning Policy (SPP). The judgment also provides useful guidance over the correct approach to assessing the quantity of local housing land supply.
The case of Gladman Developments Limited v The Scottish Ministers concerned a challenge by the land promoter against a Reporter’s decision to dismiss an appeal, following Inverclyde Council’s refusal to grant planning permission for residential development on a green belt site on the edge of the Quarrier’s Village settlement.
It had been demonstrated by the appellant that Inverclyde Council’s 2018 Housing Land Assessment demonstrated a shortfall in its five year supply of effective housing land. By virtue of para 125 of SPP, the development plan policies relating to the supply of land were to be considered out of date. Accordingly, para 32-35 of the SNP were engaged, requiring the decision maker to attach significant weight to “the presumption in favour of development that contributes to sustainable development”.
The full text of Para 33 of the SPP reads:
“Where relevant policies in a development plan are out-of-date or the plan does not contain policies relevant to the proposal, then the presumption in favour of development that contributes to sustainable development will be a significant material consideration. Decision-makers should also take into account any adverse impacts which would significantly and demonstrably outweigh the benefits when assessed against the wider policies in this SPP. The same principle should be applied where a development plan is more than five years old.”
The appellant had argued that on this basis the tilted balance should apply, and permission should be granted “unless there were any adverse impacts which significantly and demonstrably outweigh the benefits of development”.
Whilst the Scottish Ministers did not dispute that there was a shortfall in the council’s five year supply of housing land, it was argued that the Reporter had been correct in their assessment that the presumption should only be given significant weight where it had first been proven to contribute towards sustainable development, when first assessed against the thirteen principles that are set out under para 29 of the SPP. In the respondent’s view, the presumption did not apply as the Reporter had considered that the proposal had not first demonstrated that it contributed towards sustainable development.
In its defence, the appellants submitted that the Reporter had incorrectly interpreted para 33 and the application of the tilted balance as established in Hopkins Homes v SoS. It went on to state:
“Its application did not depend upon an earlier finding that the development was sustainable. It assumed that there may be adverse impacts. The use of “also” in paragraph 33 denoted an additional consequence to that identified in the first part of that paragraph. The additional consequence required a change to the balancing exercise”.
In its judgement, the Court considered the that appellants’ argument was consistent with the purpose of SPP which was to give priority to the delivery of housing, and the approach taken in Gladman Developments v Scottish Ministers, and Graham’s The Family Dairy v Scottish Ministers.
The Judgement concluded:
“Paragraph 33 provides that the effect of this is that the presumption in favour of development becomes a significant material consideration. The paragraph requires that the development contributes to sustainability. That is not a barrier to the application of the tilted balance.
The correct approach, in practical terms, where there is a housing shortage, is to regard that shortage as “a significant material consideration”. It is not determinative. Paragraph 33 goes on to provide that, in such a situation, where the tilted balance is thus in play, the decision maker must take into account any adverse impacts. These will include factors such as greenbelt, environmental and transport policies as set out in the otherwise “out of date” SDP or LDP. Each factor will play a part in the determination of whether, overall, the development is to be regarded as sustainable. In short, the existence of one or more adverse findings in relation to the thirteen guiding principles to 21 sustainability in terms of SPP (para 29) does not prevent the operation of the tilted balance, but it may result in the balance tilting back to a refusal.”
The Court also accepted the appellant’s second ground of challenge, finding that the Reporter had erred in its assessment of the authorities housing land requirement. It determined that an authority’s supply of effective housing land should be established using its Housing Land Requirement rather than its Housing Land Supply target.
The Judge concluded that the appeal must be allowed, and the decision of the reporter quashed.

Gladman Developments Limited v The Scottish Ministers



Quote of the month


We will only be able to build the kind of post-COVID-19 recovery we want with the active involvement of the private, cultural and third sectors and, importantly, the public. It is therefore vital that everyone continues to work together in the crucial weeks and months to come to deliver the action Scotland needs to recover from the impact of COVID-19.

Economy Secretary, Fiona Hyslop, referring to ‘Towards a Robust, Resilient Wellbeing Economy for Scotland: Report of the Advisory Group on Economic Recovery’

Economic advisory group sets out its plans to facilitate recovery

The Scottish Government’s independent Advisory Group on Economic Recovery has published a report setting out different sectoral and regional challenges for the economy, following the effects of the COVID-19. In addition to this, the report provides 25 recommendations it considers will help facilitate the economic recovery, in line with the Scottish Government’s broader objectives of transitioning towards a greener and more inclusive economy.
The recommendations are built upon 10 principles, which include a focus on building a resilient and robust ‘well-being economy’; tackling inequality through reducing the risks of unemployment; prioritising green investment; and putting in place a renewed sectoral and regional approach.
Of particular note, the report advocates for an immediate review of the Fiscal Framework, to enable an approach to funding that is robust to address economic recovery and is resilient to future economic shocks. Access to capital investment to support an investment-led recovery must also be improved. Furthermore, there should be a greater regional focus towards economic development, to better address the specific local challenges and opportunities.
The report recognises the public sector’s rapid adoption of new ways of working and regulating during lockdown, noting its adeptness for handling change and pivoting direction quickly. “Scotland, as a small nation with short lines of communication, is also well positioned to switch to more agile approaches to innovation, policymaking and regulation.”

Towards a Robust, Resilient Wellbeing Economy for Scotland: Report of the Advisory Group on Economic Recovery

Continuation of Help to Buy for 2021-22

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

Construction sites given partial green light to reopen

Many construction sites across Scotland have been allowed to reopen subject to various conditions as the sector moves to phase 2 of its Restart Plan. The will allow workers back on site where social distancing and personal hygiene measures are observed.
Work toward phase 3 commenced from 22 June. This will allow for steady state operation (where physical distancing can be maintained), meaning approximately 30% to 40% of normal workforce would be accommodated where physical distancing is maintained.

Scottish Government, Coronavirus (COVID-19): construction sector guidance

Scottish Government publish safer public spaces guidance

The Scottish Government has published a new guidance outlining a range of design principles to ensure the safety or urban and green spaces across Scotland during the coronavirus crisis.
The guidance provides information and examples of interventions owners and operators of public spaces may wish to implement, in order to support safety and local amenity as lock down restrictions are eased.
The launch of the new guidance coincides with Scotland’s move to phase two of its road map out of lockdown, as restrictions begin to be lifted for retail, outdoor markets and offices and factories.

Scottish Government, Coronavirus (COVID-19): guidance on safer public spaces - urban centres and green spaces



The Lichfields perspective


It is encouraging that the Advisory Group of Economic Recovery recognises the role planning has in the recovery, notably by developing a clear strategic direction and an enabling approach, and through its ability to accelerate projects by reviewing processes - which Scottish authorities have already shown themselves to be adept at, through the swift adoption of new and pragmatic practices during the COVID-19 lockdown.

Nicola Woodward, Senior Director, Head of Edinburgh office


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