This was the Court of Session's first decision on the housing policies contained in National Planning Framework 4 ("NPF4").
The case concerned an application made by Miller Homes in March 2022 for planning permission for 250 residential houses on farmland in Mossend, West Lothian. The application was made under West Lothian Council's pre-existing Local Development Plan ("LDP").
Section 25 of the Town and Country Planning (Scotland) Act 1997 required West Lothian Council to determine the planning application in accordance with the LDP, which categorised the site as greenfield land. It provided that West Lothian Council would encourage the development of other categories of site in preference to greenfield sites. However, the LDP also required West Lothian Council to maintain a supply of land which is, or is expected to be, available for development for housing within the next five years (referred to as a five-year effective housing land supply). As such, the LDP's Policy HOU 2 stated that, as an exception to the general rule against the development of greenfield land, where there is a shortfall in the supply of housing land, applications for permission to develop greenfield land would be supported, provided certain criteria are met.
Miller Homes relied on Policy HOU 2 in support of their planning application arguing that there was a substantial shortfall in the five-year effective housing land supply and that they were fulfilling the other criteria too.
On 13 February 2023, prior to the determination of the planning application, NPF4 was adopted. NPF4 became part of the statutory development plan and accordingly sits alongside the LDP. NPF4 Policy 16(f) set out a new mechanism for the exceptional release of housing land, only providing a release mechanism in "limited circumstances" and requiring new LDPs to establish a Local Housing Land Requirement (based on the Minimum All-Tenure Housing Land Requirement (MATHLR)).
In April 2023, the Scottish Ministers called in the planning application (which was then at appeal) for determination. The Scottish Ministers issued their decision to refuse planning permission in July 2023, on the basis that the planning application was contrary to a number of policies in the LDP, as well as a number of policies in NPF4, which had since been adopted.
Principally, it was the Scottish Ministers' position that NPF4's Policy 16(f) did not support the proposed development. Policies 16(f) and HOU 2 were said to be incompatible and, in accordance with Section 24 of the 1997 Act, Policy 16(f) was to be applied as it came into force at a later date.
It was this decision of the Scottish Ministers which was the subject of the challenge by Miller Homes to the Court of Session. In their view, Policy HOU 2 ought to continue to apply until such time as the LDP is replaced with a new style LDP implementing Policy 16(f) of NPF4.
In its decision, the Court of Session rejected the argument that Policy 16(f) did not operate until the adoption of a new style LDP, finding that there is no requirement to await a new style LDP to rely upon national housing policy.
Agreeing with the Scottish Ministers' position, the Court of Session determined that where there is any conflict between the LDP and NPF4 in terms of housing policy, then it is NPF4 which is the prevailing policy. They found that Policy 16 "is the antithesis of HOU 2" and that it supersedes the requirement for a five-year effective housing land supply. As such, it was not the case that the LDP's exceptional housing land release policies would remain applicable. In the circumstances, the Scottish Ministers were entitled to conclude that “the MATHLR represents the most up to date target for housing land within the development plan”.
The Court of Session further found that whilst Policy 16(f)(iii)'s first bullet point cannot operate without the provision of a housing pipeline (and that can only be established by a Delivery Programme), it does not mean that the whole of Policy 16 cannot operate at all in the absence of a pipeline.
One implication from the decision is that the Court of Session consider there to now be potential for a material consideration to arise if there is a perceived lacuna in the development plan, or if the development plan is out of date or the planning authority has failed to update the delivery programme. However, the Court of Session were clear that the Transitional Provisions Regulations do allow for the publication of a delivery programme (establishing a deliverable housing land pipeline) under old style LDPs.
Further implications of the decision will take time to emerge. It is clear, however, that applications for housing development on unallocated sites which cannot satisfy the "limited circumstances" set out in Policy 16(f) are now more than likely to be refused unless there are material considerations which could allow for approval. There are a number of similar appeals still before the DPEA for development on unallocated sites which had been placed on hold pending the Court of Session's decision; these will shortly require to be determined.
