At a time where there are significant concerns in Scotland surrounding the shortage of homes and land allocated for housing, the Court of Session's recent decision in the case of Miller Homes Ltd v Scottish Ministers [2024] CSIH 11 raises important policy questions for planning authorities and developers in connection with housing land supply.
The decision, published on 3 May 2024, is the Court's first on the housing policies in National Planning Framework 4 ("NPF4") and was eagerly awaited.
The application for planning permission
On 22 March 2022, Miller Homes Ltd sought planning permission for residential development of 250 houses on farmland in Mossend, West Lothian.
In accordance with Section 25 of the Town and Country Planning (Scotland) Act 1997, West Lothian Council were required to determine the application in line with the development plan. The local development plan applicable to the area was the West Lothian Council Local Development Plan ("the LDP").
The LDP categorised the site as greenfield land. It provided that the Council would encourage the development of other categories of site in preference to greenfield sites. However, the LDP also required the 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 HOU 2 in support of their application. They argued 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 application, NPF4, a new National Planning Framework, 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 Ministers' decision
The Scottish Ministers refused Miller Homes' application for planning permission in July 2023 on the basis that the 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.
Our team previously wrote about the Scottish Ministers' decision here.
The appeal to the Court of Session
Miller Homes appealed the Scottish Ministers’ decision to the Court of Session. In their view, HOU 2 ought to continue to apply until such time as the LDP is replaced with a new style LDP implementing Policy 16(f).
In its decision, the Court 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 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.
Implications
The Court 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 wasn’t 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 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 Court's decision is that the Court 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 were clear that the Transitional Provisions Regulations allow for a delivery programme under old style LDPs.
Further implications of the Court's 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's decision; these will shortly require to be determined.
If you are a planning authority or housing developer who would like to discuss the implications of the Miller Homes decision, then please don't hesitate to get in touch.
Our team has previously provided comment on the Court's decisions in relation to NPF4 and biodiversity and NPF4 and retail.
