Court of Session upholds planning decision, with tilted balance ‘now a thing of the past’

On 3 May 2024, the Court of Session upheld the Scottish Ministers’ decision to refuse Miller Homes Ltd planning permission for 250 houses in West Calder. 

The decision is the first occasion on which the Court has considered Policy 16 of the NPF4 (Quality Homes) and confirms the approach to be adopted when considering applications for development of unallocated housing sites in the absence of an adopted local development plan postdating NPF4.

To recap, in Scotland the statutory development plan comprises both the local development plan (LDP) for an area and NPF4. NPF4 takes precedence if it postdates the LPD. 
The court highlighted the impact the introduction of NPF4 has had on planning in Scotland:

“It is important to understand the changes that NPF4 has brought to the planning system in Scotland, in particular in relation to housing. For the first time the national plan forms part of the development plan. The housing policies in the old Scottish Planning Policy (SPP) have been largely swept away.

“Gone is the requirement to maintain an effective five year housing land supply. Gone is the focus on whether targets have been met and whether land allocated for housing was in fact being developed to meet any shortfall in supply. The operation of the “tilted balance”, analysed by this court in Gladman v Scottish Ministers 2020 SLT 898, is now a thing of the past. These changes to the development plan move housing policy away from disputes over numbers to an approach which seeks to provide housing in suitable locations, for example in 20 minute neighbourhoods.”

Key takeaways from the decision

• As highlighted by the court, the “tilted balance” is a thing of the past, the maintenance of a five year housing land supply no longer applies and the target focussed approach has been abandoned.
• Policy 16 limits the circumstances where development of unallocated land is permitted.
• NPF4 expects that the local housing land requirement (LHLR) identified in a LDP would exceed the minimum all-tenure housing land requirement (MATHLR) specified in Annex E of NPF4 - the target for housing land in the development plan.
• The Policy 16 approach is to “bring forward more land where the supply of land to meet the target is being met more quickly than envisaged in the delivery programme”.
• Housing action programmes predating the publication of NPF4 are to be reviewed, updated and republished as delivery programmes enabling a housing land pipeline.
• The existence of any shortfall in housing land supply is reinforced as being a matter of planning judgement.

Last, but not least, it should be noted that the Court of Session drew a clear distinction between development planning and development management.

An omission from a development plan, a development plan being out of date or a failure on the part of the planning authority to update a delivery programme may constitute a material consideration. In such a case, it may be argued that an application for planning permission that does not accord with the statutory development plan should be approved.