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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2021] CSIH 49

XA76/20

Lord President

Lord Menzies

Lord Turnbull

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD PRESIDENT

in the appeal under section 239 of the Town and County Planning (Scotland) Act 1997

WEST DUNBARTONSHIRE COUNCIL

Appellants

against

THE SCOTTISH MINISTERS

Respondents

and

BARRATT HOMES WEST SCOTLAND

Interested Parties

______________

Appellants: Armstrong QC; Anderson Strathern LLP

Respondents: P Reid; Scottish Government Legal Directorate

Interested Parties: J dC Findlay QC, Colquhoun; Burness Paull LLP

5 October 2021

Introduction

[1]

The appellants challenge a decision of the respondents' reporter to allow an appeal

by the interested parties against, in effect, a refusal of planning permission for a residential

development on 8.9 hectares (22 acres) of disused fields running northwards towards the

Kilpatrick Hills on the north side of Duntocher, Clydebank. The site is known as

Duntiglennan Fields and the proposal has an indicative capacity for 99 dwellings.

Technically, the appeal related to a failure to determine the application for permission, but

in submissions to the reporter the appellants maintained that the application should be

refused. The reporter granted planning permission in principle. The appeal raises a sharp

point about whether the reporter misapplied Policy 8 of the strategic Clydeplan by holding

that it applied when there was a shortfall in housing land supply in only part of: (i) the

appellants' area of West Dunbartonshire; or (ii) the housing submarket area of Greater

Glasgow North and West which was defined in the Clydeplan.

[2]

The site has a significant planning history. On two occasions, a reporter appointed

by the respondents who was examining the appellants' proposed local development plan

has either recommended, or at least made it clear, that the site ought to be released for

residential development. The appellants rejected these indications for reasons which, in

planning terms, might be said to be, at best, flimsy.

[3]

For ease of reference, the following acronyms are occasionally used:

D&VL

Dumbarton and Vale of Leven

GGNW

Greater Glasgow North and West

HLR

Housing Land Requirement

HLS

Housing Land Supply

HMA

Housing Market Area

HSMA

Housing Sub-Market Area

HST

Housing Supply Target

LDP

Local Development Plan

SDP

Strategic Development Plan

SPP

Scottish Planning Policy

National and Regional Planning Policy

Scottish Planning Policy

[4]

The Clydeplan is the second strategic development plan for the Glasgow and Clyde

Valley region. Policy 8 of the Clydeplan (infra) implements a key principle of Scottish

Planning Policy. This is that the planning system should identify:

"a generous supply of land for each housing market area within the plan area to

support the achievement of the housing land requirement ... maintaining at least a 5-

year supply of effective housing land at all times" (SPP, para 110).

Geographical areas where the demand for housing is relatively self-contained should be

identified (para 111) as "functional housing market areas". These may overlap and will

rarely coincide within local authority boundaries. There should be "cooperation between

authorities where strategic planning responsibilities an d/or housing market areas are

shared" (para 112).

[5]

SDPs set out Housing Supply Targets and Housing Land Requirements for: the

whole plan area; local authority areas; and functional housing market areas (SPP, para 118;

see Mactaggart and Mickel Homes v Inverclyde Council 2021 SLT 19, para [5]). They state the

amount and locations of land to be allocated in local development plans, which must (Town

and Country Planning (Scotland) Act 1997, s 16(6)) be consistent with the SDP. LDPs should

(paras 119 and 120) allocate sites sufficient to meet the minimum five-year supply. A

planning application must (para 125) be considered in light of whether the required

minimum exists. If it does not, the presumption in favour of sustainable development

becomes a "significant material consideration" (paras 32 to 35; see Gladman Developments v

Scottish Ministers 2020 SLT 898 at paras [45]-[50]).

APPEAL BY WEST DUNBARTONSHIRE COUNCIL AGAINST THE SCOTTISH MINISTERS AND ANOTHER [2021] ScotCS CSIH_49 (05 October 2021)

[6]

Scottish Planning Policy was amended in December 2020 (Scottish Planning Policy-

Finalised Amendments-2020), after the reporter's decision in this case, but the amendments

were reduced in Graham's The Family Dairy (Property) v Scottish Ministers [2021] CSOH 74.

The Clydeplan

[7]

The process of demarcating tiers and housing market areas began with the collection

of data which related to levels of self-containment in the housing markets of 25 local

authority sub-areas. Self-containment refers to the prevalence of households moving home

within the same area. Each area was a sub-division of, and therefore lay wholly within, a

single local authority area. In the Clydeplan, two areas with self-containment of 80%,

namely Inverclyde and Dumbarton & Vale of Leven, were designated as discrete HMAs.

The other areas were all merged to produce areas with a combined minimum of 65% self-

containment.

[8]

The Clydeplan encompasses eight local authority areas, including that of the

appellants. These areas are consolidated into a 1st Tier Housing Market Area (the

Conurbation), which stretches from Clydebank, through Glasgow to South Lanarkshire, and

the two discrete HMAs. The Conurbation is divided into two 2nd Tier HMAs (the Central

and Eastern Conurbations). These are in turn sub-divided into eleven 3rd Tier Housing Sub-

Market Areas. Seven of these are within the Central Conurbation and four within the

Eastern Conurbation. This is all illustrated in the Clydeplan's Diagram 5 as follows:

[9]

Greater Glasgow North and West is a HSMA within the Central Conurbation. The

cross-hatched area is the part of GGNW which is within the appellant's local authority area.

The balance of the appellants' area comprises the discrete D&VL HMA. The northern part

of that includes an element of the Loch Lomond and Trossachs National Park where housing

is not available. The rest of GGNW (ie that element which is not in the appellants' area) is

made up of parts of East Dunbartonshire and Glasgow City. The Clydebank part of GGNW

is in the appellants' area. The Milngavie and Bearsden parts are in East Dunbartonshire.

[10]

Schedule 8 of the Clydeplan sets out the Housing Land Requirements for each local

authority area across the plan period (2012 to 2029). In order to calculate an HLR, the

relevant Housing Supply Target is increased by between 10 and 20%, to provide for the

"generous supply" required by SPP (para 110). Schedule 10 sets out the surplus or shortfall

of private sector housing for each local authority area. Schedule 9 does the same (ie for the

private sector) for each housing market tier and each sub market area. One HSMA (not

GGNW) had a shortfall.

[11]

Policy 8 of the Clydeplan provides:

"Housing Land Requirement

In order to provide a generous supply of land for housing and assist in the delivery

of the [HSTs] ... Local Authorities should:

· make provision in [LDPs] for the all tenure [HLR] by Local Authority set

out in Schedule 8, for the Private [HLR] by [HSMA] set out in Schedule 9 and

for the Private [HLR] by local authority set out in Schedule 10;

· allocate a range of sites which are effective ... in the plan periods to meet

the [HLR] for each [HSMA] and for each Local Authority, ... up to year 10 ...;

· provide for a minimum of 5 years effective land supply at all times for each

[HSMA] and for each Local Authority ...

...

Local Authorities should take steps to remedy any shortfalls in the five-year supply

... through the granting of planning permission for housing developments, on

greenfield or brownfield sites, subject to satisfying each of the following criteria..."

Five criteria, which are designed to take account of competing policy considerations, are

described. The development must: (1) help to remedy the shortfall in supply; (2) contribute

to sustainable development; (3) be in keeping with the character of the settlement and the

local area; (4) not undermine green belt objectives; and (5) have the developer commit or

fund any additional required infrastructure.

Local Planning Policy

The Unadopted LDP 2

[12]

The appellants' first (and last) LDP was adopted in March 2010. The examination

report on that LDP had accepted the appellants' position that the site should not be allocated

for residential development. The appellants published an initial version of a new proposed

LDP (LDP 2) in September 2013. In this, the site was allocated (Sch 4) for residential

development. In February 2014, the appellants deleted the allocation, notwithstanding their

acceptance that the site's exclusion would result in a shortfall in the HLS. A modified

version of the LDP was produced in March 2014. In January 2015 the examination report on

LDP 2 recommended (issues 16 and 17) the allocation of the site as residential. The reporter

held that there was a short-term shortfall in the appellants' area. There were no

unacceptable environmental or other impacts in relation to the site (para 39). It was the only

site which could reasonably be expected to deliver housing by 2020. The appellants

obtained legal advice that, should the respondents agree with their reporter, as they later

did, there would be no grounds for declining to allocate the site for housing. The

recommendation was binding on the appellants except in certain defined circumstances (see

the Town and Country Planning (Grounds for Declining to Follow Recommendations)

(Scotland) Regulations 2009). In March 2015 the appellants told the respondents that they

would not adopt LDP 2 on the ground that it did not comply with the Clydeplan.

[13]

By letter dated 2 June 2015, the respondents directed the appellants not to adopt

LDP 2 without allocating the site, as it was required in order "to address the requirements of

Scottish Planning Policy and to enable delivery of the strategic housing requirement for

private sector housing in the period to 2020." Standing the statutory obligation to produce

an updated LDP every five years, that could reasonably have been interpreted as leaving the

appellants with little choice. On 24 June 2015 the appellants refused to follow the direction.

[14]

Sundry correspondence failed to break the stalemate; the appellants maintaining that

the allocation of what was a greenfield site was unnecessary and that it should not be

released as a housing opportunity (Planning Committee, 23 March 2016, para 3.5). The

appellants' planning officials recommended adopting LDP 2 with the site allocated because,

it was "required to enhance the quantity and quality of the housing land supply in West

Dunbartonshire and Clydebank in particular" (Planning Committee, 27 April 2016, para

4.14). The appellants instructed their officials to prepare a new LDP 2, which would not be

adopted until at least nine years after the 2010 LDP, notwithstanding the requirement to do

so every five years. The appellants published the new LDP 2, excluding the allocation of the

site. This stated (para 6.2) that there was no net shortfall in the HLS of West

Dunbartonshire.

[15]

In December 2016, Taylor Wimpey applied for permission to develop 99 houses on

the site. This application was refused in May 2017 as contrary to the development plan (ie

the Clydeplan 2012 and the 2010 LDP), because it would be within the green belt. That

decision was not appealed. The new Clydeplan came into force on 24 July 2017.

The new adopted LDP 2

[16]

On 30 May 2019, the appellants submitted the new proposed LDP to the

respondents. The respondents' examination reporter was concerned about the absence of

any analysis which demonstrated its consistency, in terms of meeting the HLRs for the

D&VL and GGNW HSMAs within the Clydeplan. He issued an information request to the

appellants on 16 December 2019. This asked (p 3) for:

"i. Commentary as to whether Policy 8 and Schedule 9 of Clydeplan require the LDP

to demonstrate that the housing land requiremen t can be met at housing market/

housing sub-market area level?

...

iii. Supply the evidenced figures to demonstrate that the housing land requirements

set out in Schedule 9 of Clydeplan will be achieved."

The reporter was in effect asking for the appellants' view on whether the new LDP 2

demonstrated how the HLRs for the D&VL and GGNW HSMAs could be met and to

provide the relevant data.

[17]

The appellants' response of 13 January 2020 contained alternative submissions. They

maintained first that there was no shortfall in the HLS for the appellants' part of GGNW (ie

Clydebank). In order to calculate a notional HLR for that part, the D&VL HLR could be

subtracted from the West Dunbartonshire HLR. Detailed calculations were provided to

support the position that there was a surplus in the HLS for this, ie the Clydebank area. This

argument was rejected by the reporter, who found that there was a significant shortfall in

that area of 471 units (infra).

[18]

The alternative submission was that the Clydebank was part of the wider HSMA of

GGNW, which, overall, had a surplus. Housing demand and the house buyer market were

mobile and flexible. The Clydeplan did not stipulate the proportion required from each

local authority when there were overlapping SMHAs. It set out the HSTs and HLRs at both

HMA and local authority areas as a requirement of SPP. If there was a small deficit in the

HLR, as set out in the Clydeplan, it could be made up from a surplus elsewhere in GGNW.

[19]

On the third part of the further information request ((iii)), no evidenced figures for

there being a surplus, beyond the reference to Clydeplan Monitoring Reports, were given.

Homes for Scotland responded by enclosing its submission to East Dunbartonshire

Council's LDP that there was a shortfall in GGNW and, latterly, emphasising that there was

a shortfall in Clydebank under reference to the recently agreed 2019 Housing Land Audit.

[20]

The examination report on the new LDP 2 acknowledged that there was a strong case

for reducing the identified shortfall in HLS in the Clydebank area and that its existence

might outweigh any negative effect on the landscape. The reporter did not recommend the

allocation of the site for residential purposes because he had not seen comprehensive

environmental information and the local community had not had a recent opportunity to

express its views. LDP 2 had set out to demonstrate that the HLRs were exceeded across the

plan area. However, there was no separate analysis of the HLRs for the D&VL HMA and

the GGNW HSMA, as required by Policy 8 and Schedule 9 of the Clydeplan. Although

LDP 2 did not have to include tables demonstrating how the HLRs had been met, the

examination reporter did have to satisfy himself that the strategic requirements had been

satisfied.

[21]

The examination reporter agreed with the appellants' method of calculating the

notional Clydebank HLR by subtracting the D&VL HLR from the West Dunbartonshire local

authority area HLR. An alternative would have been to subtract the equivalent notional

HLRs for East Dunbartonshire and Glasgow City (ie those local authorities' parts of GGNW)

from the GGNW HLR. Another was to seek to achieve an agreement between the three local

authorities on the sub-divisions of the GGNW HLR for which each would be responsible (in

effect creating sub-HSMAs). No such agreement had been reached. The solution adopted

was the only practicable one.

[22]

The reporter held that there was a shortfall of 471 units in the Clydebank area for the

period 2019 to 2024. This was over half of the Clydebank HLR: ie it was not a small deficit.

The reporter recommended that the appellants should take action to resolve the short-term

shortfall. He drew attention to LDP 2 Policy H1 which required a five year effective supply

of housing land across the local authority area and each housing market area to enable

delivery of the strategic HLR.

[23]

On 19 August 2020, the appellants approved LDP 2 as modified. The appellants

accepted the reporter's amendment of the figures, including the private sector shortfall of

471 units. The appellants had expected to have been able to adopt LDP 2 on 23 September

2020. After the appeal to the court had been lodged, the respondents directed the appellants

not to adopt LDP 2 without making certain amendments relating to housing land supply

generally.

The Appeal to the Reporter

[24]

The reporter identified several issues as relevant in the appeal. The first was

whether there was an adequate HLS in the appellants' local authority area. The Clydeplan

and the 2010 LDP were identified as the applicable development plan. The reporter

recognised the age of the LDP immediately and commented that its vintage might result in

the application of the presumption in favour of development (SPP para 33). In anticipation

of its formal adoption on 23 September, the new LDP 2 was regarded as a material

consideration of considerable weight.

[25]

The reporter explained that, although Schedule 9 of Clydeplan did not state a figure

for the appellants' part of GGNW (ie Clydebank), the matter had been dealt with in the new

LDP 2 examination report. Paragraph 17 of the report merits rehearsal:

"... I see no reason to disagree with that approach ... Policy 8 of Clydeplan requires

local authorities to make provisions in [LDPs] for all-tenure [HLR] by local authority,

as set out in Schedule 8; for the private [HLR] by [HSMA], as set out in Schedule 9

(reporter's emphasis); and for the private [HLR] by local authority, as set out in

Schedule 10. To what extent it is necessary to disaggregate the [HSMAs] in Schedule

9 is open to question; although I appreciate that a failure to meet the requirement in

one part of the sub-market area might lead to an overall failure for the whole area. I

have no information on the housing land situations in the rest of [GGNW], which

includes parts of Glasgow and East Dunbartonshire Council areas."

Whereas the strict requirement in Policy 8 was for LDPs to meet the HLRs for HSMAs, there

was no information to indicate whether sufficient land had been allocated to meet the

requirement for GGNW. In a key passage (para 34), the reporter stated:

"... I accept (as appear to have the parties involved in the LDP2 examination), that

failure to meet the required provision in Clydebank is likely to mean that the overall

provision has also not been met."

The respondents accepted in this appeal that the assertion quoted in parenthesis was

incorrect. The appellants had not accepted that a shortfall in the notional Clydebank sub-

HSMA would result in a shortfall in either West Dunbartonshire or the GGNW HSMA. It

was clear, from the response to the further information request, that their position was that a

shortfall in Clydebank could be made up through what they described as a healthy surplus

elsewhere in GGNW.

[26]

Based on the calculations in the examination report, the reporter held that there was,

at best, a maximum of 3.4 years' supply relative to the Clydebank sub-HSMA HLR. The

implication of that was that the appellants should take steps to remedy the shortfall. The

interested parties' proposed development fulfilled each of the five criteria. The

development did not conflict with green belt objectives in view of what had been said on

these matters in the 2015 and 2020 LDP examination reports. The reporter's reasoning was

prefaced in these terms (para 51):

"Notwithstanding the continued identification of the appeal site in the green belt in

LDP2, policy 8 of Clydeplan states that permission may be granted for new housing

developments to remedy a shortfall in the five-year supply of effective housing land

provided that they would not undermine green belt objectives."

The shortfall in the Clydebank sub-HSMA constituted a significant material consideration to

which the appellants did not object. The reporter concluded that (para 116):

"...the contribution that the development would make to help meeting the identified

housing land shortfall in Clydebank is a significant material consideration that

justifies granting planning permission in this case".

Submissions

Appellants

[27]

The appellants' central contention was that the reporter's reasoning was erroneous in

so far as it suggested that a shortfall in the HLS in one part of an HSMA triggered the

remedial mechanism in Policy 8 of the Clydeplan. Only HSMAs as a whole and local

authority areas were referred to in Policy 8. HSTs and HLRs were applied only to these

areas in the schedules. Schedules 9 and 10 did not identify sub-units of HSMAs. The

Clydebank sub-sub-market area was not mentioned in the Clydeplan. As the respondents

now accepted, the reporter was wrong about the appellants' concession that a shortfall in

Clydebank meant there was likely to be a shortfall in GGNW HSMA. That had been the

only basis for his conclusions. He acknowledged that he had no information on that part of

the GGNW HSMA beyond the appellants' element.

[28]

A notional shortfall in the Clydebank area could be a material consideration, but it

had no significance beyond that. The decision appeared to recognise that a shortfall in

Clydebank was only that and therefore not a trigger for a consideration against the five

criteria. This contradicted the earlier analysis and conclusions. Such a shortfall could not, at

that stage of the decision, also be a material consideration. That would be double-counting.

There had been no basis upon which to conclude that a failure to meet the Clydebank

notional HST meant that the overall requirements of the Clydeplan had not been met. From

figures now produced (Housing Land Monitoring Report 2018 Tables 2 and 3) there was a

surplus in the GGNW HSMA. The appellants had had no prior notice that this would be

regarded as a determinative issue. If they had had notice, they could have led evidence to

show that there was no shortfall.

Respondents

[29]

The reporter's decision to follow the approach of the new LDP 2 examination

reporter was entirely appropriate. The appellants could have presented evidence about the

overall position in the GGNW HSMA, but they had told the examination reporter to look at

the Clydebank area in order to derive its required contribution to the HLR in GGNW. They

did not ask the reporter to take a different approach. There was an obvious logic in the

calculation which had been advanced by the appellants during the examination. Its purpose

was to establish a requirement. The use of "shortfall" was in the context of the application

of Policy 8 to GGNW. That was justified by the reporter taking a flexible approach to Policy

8 (Tesco Stores Ltd v Dundee City Council 2012 SC (UKSC) 278, para [18]). Otherwise, any

shortfall in Clydebank would be entirely masked. On the appellants' approach, the HLR for

GGNW was met entirely from sites outside West Dunbartonshire. The West

Dunbartonshire HLR was met entirely in D&VL. There would be no remedy to address a

shortfall in Clydebank. Although the reporter was wrong to suggest that the appellants had

agreed that a shortfall in Clydebank alone could trigger the remedial provisions of Policy 8,

that did not matter because it could do so in any event.

[30]

The approach of both the new LDP 2 examination reporter and the appeal reporter

had been to identify the requirement for the Clydebank area by subtracting the D&VL HMA

from that of West Dunbartonshire as a whole. That resulted in an HLR for Clydebank of

1,030 (2012-24) and 430 (2024-29). For the period 2019-24 the LDP 2 reporter found a

shortfall in the private HLS of 471 and the appeal reporter agreed with that. The appellants

had not complained about the approach of the LDP 2 reporter and had accepted that there

was a significant short term shortfall in Clydebank.

Interested Party

[31]

The reporter had correctly identified that Policy 8 of the Clydeplan required local

authorities to make provision in LDPs for HLRs by HSMAs (schedule 9) and local authority

areas (schedule 10). The problem which arose was that, although most of the appellants'

area was within the D&VL HMA, Clydebank fell within the GGNW HSMA. The Clydeplan

provided no assistance on how to approach a possible shortfall in Clydebank. The reporter

had the assistance of the findings of the new LDP 2 reporter on the same issue and had the

parties' representations on it. The appellants had not criticised the LDP 2 reporter's

approach which had found a shortfall in the Clydebank area. It was important to remember

that the terms of an SDP were statements of policy and not legislation (Hopkins Homes v

Secretary of State for Communities and Local Government [2017] 1 WLR 1865 at para 25). The

courts should respect the reporter's expertise and start from a presumption that he had

correctly understood the policy framework. It was the reporters who had the primary

responsibility to resolve disputes about the practical application of policy.

[32]

It must be possible to allocate an HLR of an HSMA between the relevant local

authorities in order to determine whether the Policy 8 requirement which applied to each

authority had been met. If allocation were not possible, the requirement to meet the HLR

would rest on each authority, or not at all. A local authority could not demonstrate

compliance unless it could maintain an effective supply for the HSMA within its own

portion of that area.

[33]

The LDP 2 reporter had identified the HLR for the D&VL HMA before considering

the HLR for the Clydebank portion of the GGNW HSMA. He had then set out the

appellants' method of calculating the HLR for Clydebank. He identified a requirement

whereby Policy 8 could be applied in a sensible and practical fashion. He found that there

was a shortfall and recommended that steps should be taken to remedy it on the basis that

there would otherwise be a failure to comply with Policy 8. The appeal reporter adopted

this approach, having first sought the views of the parties upon it. He was told that the

appellants had adopted the new LDP 2 as modified, thus accepting that there was a

significant, but short term, shortfall within the Clydebank area. The appellants did not

provide information on the GGNW HSMA or suggest a different approach to compliance.

Decision

[34]

The purpose of paragraph 110 of Scottish Planning Policy is to provide a defined

generous supply of land for each housing market area. If there is a distinct HMA

identifiable, a generous supply for that area should be made available. Paragraph 111 refers

to the need to identify "functional" HMAs. The general method by which this is achieved by

the Clydeplan is to set out housing land requirements not only for each local authority area

and any discrete HMA (ie Inverclyde and Dumbarton & Vale of Leven) but also for each

housing sub market area which has been aggregated in the relatively rough and ready

manner of merging various areas to create larger blocks with a minimum of 65% self-

containment. The GGNW HSMA is an example of this, encompassing Clydebank,

Milngavie and Bearsden. There is a degree of artificiality about this exercise when the

situation on the ground is considered. This artificiality persists even when translated into a

more practical form in Policy 8. Nevertheless, the policy intention remains clear. Where a

functional HMA is identified, its housing land requirements ought to be calculated by the

stipulated generous provision and met.

[35]

If read literally, Policy 8 would be complied with by a local authority providing the

required housing units to meet the HLRs specified in Schedule 8 to 10 in respect of the

particular local authority area and each HSMA within that area. Such a reading would

produce a workable result where the HSMAs were all wholly within the local authority's

area. A problem arises where, as often happens, the HSMA straddles one or more different

local authority areas. In the absence of an agreement between these local authorities, how is

the obligation under Policy 8 to be realised? Is each of these authorities to meet the HLR

within its own area, irrespective of what the other authorities might have done? The answer

to the latter question must be in the negative. When determining whether a particular

authority has met its obligation, a reporter in a planning application ought to be provided

with figures relative to all parts of the HSMA.

[36]

Read strictly, in this way, the appellants could avoid contributing to the HLR of the

GGNW HSMA if they were to prove that East Dunbartonshire and Glasgow City Councils

had already produced a sufficient surplus for the GGNW HSMA in, for example, Milngavie

and/or Bearsden. This may be legitimate if Clydebank, Milngavie and Bearsden were

regarded, as the Clydeplan suggests, as a single HSMA when looked at together. The effect

of this would be that no land need ever be allocated for housing, under this policy, for

Clydebank as reliance could be placed on surpluses elsewhere. The same effect could be

produced in different circumstances for either Milngavie or Bearsden.

[37]

Although that type of situation might be acceptable, where relatively small shortfalls

were found to exist in a particular area, whether the policy is being complied with can

involve a question of whether, using his planning judgement, a reporter finds that a discrete

HSMA exists in one or more of the areas described in the Clydeplan. As the reporter in the

appeal put it, the matter (and it is one for planning judgement) becomes one of whether it is

necessary to disaggregate the defined HSMA. If the reporter considered that it was

necessary in a given situation, it becomes equally legitimate, if not imperative, when

applying a flexible and practical approach to policy, to look at that disaggregated area as if it

were an HSMA defined in the Clydeplan in its own right and to apply Policy 8 accordingly.

That is essentially what the new LDP 2 examination and the appeal reporters did. They did

not misread or misapply the policy; it is clear that they knew what the policy said, what a

literal interpretation of that policy would mean and what its practical effect would be.

Rather they applied the desired flexible (Tesco Stores Ltd v Dundee City Council 2012 SC

(UKSC) 278, Lord Reed at para [18]) and practical (Hopkins Homes v Secretary of State for

Communities and Local Government [2017] 1 WLR 1865, Lord Carnwath at para [25]) approach

in considering that Clydebank was a discrete HSMA, notwithstanding its somewhat random

amalgamation in the Clydeplan within the GGNW HSMA and with West Dunbartonshire

and Vale of Leven in the single local authority area under the appellants' control. The

disaggregation of Clydebank as a distinct HSMA can hardly be regarded as a surprising one

to those familiar, as the reporters would be, with the situation on the ground.

[38]

In order to succeed in this appeal the appellants would have to demonstrate that the

appeal reporter's decision to apply Policy 8 in this way was unreasonable. In order to do

that, they would have to persuade the court that a literal or strict approach was necessary

when the appeal reporter was deciding whether the proposed development was in

accordance with the strategic Clydeplan (and the extant original LDP). They have failed to

do this and on that principal basis the appeal must be refused.

[39]

In addition, it ought to have been clear to the appellants that, sooner or later, a

decision-maker would be required to make a finding on whether the minimum supply

subsisted across the whole of the GGNW HSMA and that Policy 8 would be applied

accordingly. The appeal reporter ought to have been assisted in this task, but he was

provided with limited information on the HLS in the GGNW HSMA beyond the Clydebank

area. The appellants object to the reporter recording that they accepted that there had been a

failure to meet the required provision in Clydebank. The appellants place undue reliance on

this point. First, the relevant part of the report "(as appear to have the parties involved in

the LDP2 examination)" is in parenthesis and is not critical to the reporter's findings.

Secondly, the reporter, in following the LDP 2 examination reporter, found in fact that there

was a shortfall in Clydebank and, realistically, in the absence of adequate information on the

rest of the GGNW HSMA, the bigger the shortfall in Clydebank, the greater the likelihood of a

shortfall in GGNW.

[40]

The reporter proceeded on the basis of his finding that the shortfall in Clydebank

corresponded to over half of its notional HLR. Land identified as effective for housing in the

period 2019 to 2024 amounted to 418 units, whereas the notional HLR was 889. There was

no shortfall in West Dunbartonshire as a whole only because in D&VL, which had an HLR

of 163, there was a large over-supply of 719. In the original planning application and in the

appeal to the reporter, the appellants and the interested parties mirrored the approach of the

developers in the Carsemeadow appeal (Quarriers Village (PPA-280-2027-1, 25 May 2021)).

Neither set out to address in detail the HLR across the whole of the GGNW HSMA. In the

appeal to the reporter, the interested parties introduced a submission that there was a

shortfall in the HSMA for Clydebank. The appellants' response to that only addressed

whether there was a shortfall in the notional Clydebank HLS. They did not advance the

position adopted in the appeal to the court, that a shortfall in only one part of an HSMA did

not trigger the remedial provisions of Policy 8.

[41]

The examination report on the new LDP 2 was issued during the appeal process.

The parties were invited to make submissions on the conclusions and recommendations of

the examination reporter that were relevant to the issues raised in the appeal. One of the

conclusions was that there was a substantial shortfall in the Clydebank area. It seems clear

that, if the only factors to be balanced were HLS and the green belt, the examination reporter

would have recommended a modification to allocate the site for housing in LDP 2. If part of

the appellants' position was that a Clydebank shortfall alone did not trigger Policy 8, they

ought to have made a submission to that effect under reference to evidence of the HLS in the

rest of the GGNW HSMA. The reporter had in effect been inviting them to do so. The

appellants did not attempt to demonstrate that there was an effective HLS in the GGNW

HSMA as a whole. The reporter did have some figures for existing land supply in GGNW

from Schedule 9 of the Clydeplan, but they related to the position in mid-2017 and included

a surplus in Clydebank. This material was out date by the time the reporter was making his

decision in the second half of 2020. The reporter's ultimate reasoning, that the shortfall in

Clydebank was sufficient to establish, as a matter of probability, a shortfall in the GGNW

HSMA as a whole cannot, on this basis, be faulted. The appeal must also fail on this more

formal basis.