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Appeal by Miller Homes Ltd against The Scottish Ministers (Court of Session) [2024] CSIH 11 (03 May 2024)
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
XA41/23
Lord President
Lord Pentland
Lord Boyd of Duncansby
OPINION OF THE COURT
delivered by LORD BOYD OF DUNCANSBY
in the appeal under section 239 of the Town and Country Planning (Scotland) Act 1997
in the cause
MILLER HOMES LTD
Appellants
against
THE SCOTTISH MINISTERS
Respondents
____________
Appellants: J de C Findlay KC, Garrity; Shepherd & Wedderburn LLP
Respondents: Crawford KC, Way; Scottish Government Legal Directorate
3 May 2024
Introduction
[1]
Miller Homes appeal against the Scottish Ministers' refusal of their application for
planning permission for a residential development of 250 houses on farmland north of the
B792 at Mossend, West Calder. The Ministers' principal basis for refusing planning
2
permission was that the development was incompatible with Policy 16(f) of the Fourth
National Planning Framework (NPF4). NPF4 was adopted on 13 February 2023. The West
Lothian Local Development Plan has not yet been updated to introduce some of the changes
brought about by NPF4. The appellants contend that until such time as a new LDP is issued
by West Lothian Council, Policy 16(f) cannot take effect. Instead, they seek to rely on Policy
HOU 2 of the LDP. The Ministers' position is that Policy 16(f) supersedes and prevails over
the terms of HOU 2. The relationship between the newly implemented NPF4 and existing
LDPs is at the heart of this appeal.
Background
[2]
The appellants sought planning permission from West Lothian Council for the
development on 7 March 2022. West Lothian Council failed to determine the application
timeously. On 1 August 2022 the appellants appealed to the Ministers against that failure.
The Ministers appointed a planning reporter. The reporter held a hearing on the application
in December 2022.
[3]
On 26 April 2023, the Ministers called in the appeal in order to determine it
themselves, on the basis that it raised national issues in terms of the application of NPF4.
The reporter issued a report on 11 May 2023 in which he recommended that the Ministers
refuse planning permission. On 19 July 2023, the Ministers issued a decision notice
dismissing the appeal and refusing planning permission.
3
Relevant provisions of the Town and Country Planning (Scotland) Act 1997
[4]
The Planning (Scotland) Act 2019 made significant changes to the planning system in
Scotland by amending the Town and Country Planning (Scotland) Act 1997.
[5]
Section 1 of the 2019 Act inserts a new section 3ZA into the 1997 Act which specifies
that the purpose of planning is to manage the development and use of land in the long-term
public interest, defined as (a) contributing to sustainable development, or (b) achieving the
national outcomes within the meaning of Part 1 of the Community Empowerment (Scotland)
Act 2015. The national outcomes are measures across a range of government activity and
supporting United Nations Sustainable Development Goals.
[6]
Section 2 of the 2019 Act amended section 3A of the 1997Act making new provisions
for the National Planning Framework. So far as relevant it is now in the following terms:
"3A
National Planning Framework
(1)
There is to be a spatial plan for Scotland to be known as the 'National
Planning Framework'.
(2)
The National Planning Framework is to set out the Scottish Ministers'
policies and proposals for the development and use of land.
(3)
The National Planning Framework must contain--
(a)
a strategy for Scotland's spatial development,
(b)
a statement of what the Scottish Ministers consider to be
priorities for that development,
(c)
a statement about how the Scottish Ministers consider that
development will contribute to each of the outcomes listed in
subsection (3A),
(d)
targets for the use of land in different areas of Scotland for
housing, and
(e)
an assessment of the likely impact of each proposed national
development's lifecycle greenhouse gas emissions on achieving
national greenhouse gas emissions reduction targets (within the
meaning given in the Climate Change (Scotland) Act 2009).
(3A)
The outcomes are--
(a)
meeting the housing needs of people living in Scotland
including, in particular, the housing needs for older people and
disabled people,
4
(b)
improving the health and wellbeing of people living in
Scotland,
(c)
increasing the population of rural areas of Scotland,
(d)
improving equality and eliminating discrimination,
(e)
meeting any targets relating to the reduction of emissions of
greenhouse gases, within the meaning of the Climate Change
(Scotland) Act 2009, contained in or set by virtue of that Act, and
(f)
securing positive effects for biodiversity."
[7]
New section 3CA provides that the Scottish Ministers may not adopt a revised
National Planning Framework until a draft of it has been approved by the Scottish
Parliament. As senior counsel for the Scottish Ministers pointed out, the new NPF4 has a
democratic mandate. It was adopted by the Scottish Ministers and published in terms of
section 3CA(7), following approval of the Scottish Parliament on 13 February 2023.
[8]
Section 6 of the 2019 Act removes the requirement to prepare strategic development
plans. LDPs are dealt with in section 7 amending various provisions of the 1997 Act.
Section 15 of the 1997 Act now reads so far as relevant:
"15
Form and content of local development plans
(1)
A local development plan is a plan in which is set out, for land in the
part of the district to which it relates--
(a)
a spatial strategy, being a detailed statement of the planning
authority's policies and proposals as to the development and use of
the land taking account of the matters mentioned in subsection (5),
(b)
such other matters as may be prescribed, and
(c)
any other matter which the planning authority consider it
appropriate to include.
(1A)
The local development plan must also include targets for meeting the
housing needs of people living in the part of the district to which it relates.
...
(5)
The matters referred to in subsection (1)(a) are--
...
(ca)
the housing needs of the population of the area, including, in
particular, the needs of persons undertaking further and higher
education, older people and disabled people,
(cb)
the availability of land in the district for housing, including for
older people and disabled people,
5
...".
[9]
Section 21 deals with delivery programmes. These replace action programmes. So
far as relevant it provides:
"(2)
A planning authority who prepare a local development plan are to
prepare a delivery programme for the plan.
...
(9)
The authority must keep the delivery programme under review and
must update and re-publish it--
(a)
whenever required to do so by the Scottish Ministers, and
(b)
(subject to paragraph (a)) whenever they think it appropriate
to do so but in any event within 2 years after last publishing (or re-
publishing) it."
[10]
Section 24(1) of the 1997 Act defines a development plan as the National Planning
Framework, any strategic development plan which applies to the area, and any LDP which
applies to the area. Section 24(3) provides for the situation where a conflict arises between
any of the policies within the different plans:
"(3)
In the event of any incompatibility between a provision of the
National Planning Framework and a provision of a local development plan,
whichever of them is the later in date is to prevail."
[11]
Section 25(1) provides that where a determination is to be made under planning
legislation, it is to be made in accordance with the development plan unless material
considerations indicate otherwise.
[12]
In the course of this appeal counsel have referred to "new-style LDPs" as those to be
adopted following the adoption of NPF4. "Old-style LDPs" refers to those adopted before
that date. We shall adopt the same terminology.
6
Subordinate Legislation and Transitional Arrangements
[13]
The new provisions in primary legislation have been accompanied by the enactment
of new Regulations, in particular The Town and Country Planning (Development Planning)
(Scotland) Regulations 2023 (SSI 2023/101) (the 2023 Regulations). Regulation 24 sets out the
form and content of delivery programmes. The Planning (Scotland) Act 2019
(Commencement No. 12 and Saving and Transitional Provisions) Regulations 2023 (SSI
2023/100)) (the Transitional Provisions Regulations) makes certain savings in relation to local
development plans and transitional provisions in respect of action programmes under "old-
style" LDPs. An action programme is a document which sets out how a planning authority
proposes to implement its local development plan (s 21(6)), 1997 Act). It contains a list of
actions that require to be fulfilled in order to deliver each of the policies and proposals in the
relevant development plan and the timescale for conclusion of each action (reg 26, The Town
and Country Planning (Development Planning) (Scotland) Regulations 2008) (the 2008
Regulations). Regulation 5 of the Transitional Provisions Regulations provides that when an
action programme is reviewed, updated and republished, it must be republished as a
delivery programme. Delivery programmes operate in broadly the same manner as action
programmes, but in addition they must contain the expected sequencing of, and timescales
for, delivery of housing on sites allocated by the LDP (reg 24, 2023 Regulations).
NPF4 Housing Policy
[14]
The section on housing is headed "Quality Homes" and the policy intent is stated to
be:
"To encourage promote and facilitate the delivery of more high quality, affordable
and sustainable homes, in the right locations, providing choice across tenures that
meet the diverse housing needs of people and communities across Scotland."
7
The policy outcomes include the provision of land in the right locations to accommodate
future needs and demand for new homes supported by the appropriate infrastructure.
[15]
Policy 16 is the relevant housing policy. So far as relevant it is in the following terms:
"a)
Development proposals for new homes on land allocated for housing in LDPs
will be supported.
...
f)
Development proposals for new homes on land not allocated for housing in
the LDP will only be supported in limited circumstances where:
i
the proposal is supported by an agreed timescale for build-out; and
ii
the proposal is otherwise consistent with the plan spatial strategy and
other relevant policies including local living and 20 minute neighbourhoods;
iii
and...either;
delivery of sites is happening earlier than identified in the
deliverable housing land pipeline. This will be determined by
reference to two consecutive years of the Housing Land Audit
evidencing substantial delivery earlier than pipeline timescales
and that general trend being sustained;
the proposal is consistent with policy on rural homes; or
the proposal is for smaller scale opportunities within an existing
settlement boundary; or
the proposal is for the delivery of less than 50 affordable homes as
part of a local authority supported affordable housing plan."
[16]
The LDPs are expected to identify a Local Housing Land Requirement (LHLR) for
their area. This is the amount of land which is required to meet the housing target. This is
expected to exceed the 10 year Minimum All-Tenure Housing Land Requirement
(MATHLR). The MATHLR for each planning authority is the minimum amount of land that
is to be provided for development by each planning authority in a ten-year period. It is
expressed in terms of the number of housing units and is set by NPF4 (in Annex E). As
already explained the LDP delivery programme is expected to establish a deliverable
housing land pipeline for the LHLR. The purpose of the pipeline is to provide a transparent
view of the phasing of housing allocations so that interventions, including infrastructure,
8
that enable delivery can be planned: it is not to stage permissions. Representing when land
will be brought forward, phasing is expected across the short (1-3 years), medium (4-6 years)
and long-term (7-10 years). Where sites earlier in the deliverable housing land pipeline are
not delivering as programmed, and alternative delivery mechanisms identified in the
delivery programme are not practical, measures should be considered to enable earlier
delivery of long-term deliverable sites (7-10 years) or areas identified for new homes beyond
10 years. De-allocations should be considered where sites are no longer deliverable. The
annual Housing Land Audit will monitor the delivery of housing land to inform the pipeline
and the actions to be taken in the delivery programme.
[17]
There are a range of other NPF4 policies which are relevant for the purposes of
housing policy. These include Policy 2, - "Climate Change and Impact". Policy 9 covers
"Brownfield, vacant and derelict land and empty buildings." Policy 13 concerns
"Sustainable Transport". Policy 15 supports "Local Living and 20 Minute
Neighbourhoods". Its aim is to create neighbourhoods where people can meet the majority
of their daily needs within a reasonable distance of their home, preferably by walking,
wheeling or cycling or using sustainable transport options. Development proposals should
meet this aim, and in assessing a proposal, consideration will be given to whether there is
local access to public transport, shopping, and employment, among other things.
Relevant West Lothian LDP policies
Policy HOU 2
[18]
Policy HOU 2, "Maintaining an effective housing land supply", requires the council
to maintain, at all times during the life of the development plan, a minimum of a five year
effective housing land supply. The supply needed is worked out by an annual audit, which
9
is agreed with housing providers. HOU 2 allows the development of greenfield land where
there is a shortfall in the supply, provided that: (a) the proposed development will be in
keeping with the character of the settlement and local area; (b) any additional infrastructure
required as a result of the development is either committed or to be funded by the
developer; (c) the development will contribute to sustainable development; and (d) the
development is expected to deliver new housing within five years.
Other relevant policies
[19]
Policy NRG 1 aims to promote a series of principles concerning climate change and
sustainability. These are: the reduction of greenhouse gas emissions, promoted by enforcing
the statutory requirements of the Climate Change (Scotland) Act 2009; sustainable land use;
and sustainable design and development. Development proposals are expected to have
regard to the principles.
[20]
Policy TRAN 1 concerns "Transport infrastructure". The transport impact of a
development will require to be assessed, and development will only be permitted where
that assessment indicates that transport impacts are acceptable. The assessment must cover
all modes of transport and be approved by the council. Policy ENV 2 provides for "Housing
development in the countryside". Such development will only be permitted where it falls
into one of five categories: (a) the restoration of a brownfield site where there is no realistic
prospect of the site being returned to agriculture or woodland use and it has no significant
natural heritage value in its current condition; (b) the replacement of an existing house in the
countryside which is of a poor design or in a poor structural condition; (c) infill
development within the curtilage of an existing building group or infilling of gaps between
existing houses of a single plot width; (d) the conversion or rehabilitation of existing rural
10
buildings which the council deems worthy of retention because of their architectural or
historic merit; or (e) the proposal is supported by the council's lowland crofting policy.
ENV 7 covers "countryside belts and settlement setting". Again, a development requires to
meet certain criteria in order to be permitted under ENV 7, one of which is that it must
comply with policies ENV 1 6. Therefore, if a development does not comply with ENV 2,
it does not comply with ENV 7.
The reporter's recommendations
[21]
The proposed development would be contrary to Policy 16(f) of NPF4. The policy
took effect from the time of NPF4's publication. It represented a new policy approach to
exceptional release of unallocated land. It deliberately intended to limit the use of
unallocated land, except where certain criteria were met. The proposed development did
not meet criteria (ii) or (iii) and so the policy restricted the proposed development.
[22]
Regarding the appellants' argument that Policy HOU 2 was to be applied over
Policy 16(f), on a straightforward reading of NPF4, Policy 16(f) applied from the time of its
publication. The policymakers would have been aware that there would be a transitional
period during which the first bullet point of Policy 16(f)(iii), as a result of its reference to the
deliverable housing land pipeline, would not allow for exceptional release. They published
the policy notwithstanding. If it were otherwise, it would cause difficulties for coherence
and comprehensibility of the development plan. Given that Policy 16(f) covered the same
subject matter as HOU 2, but would produce a different effect, the two policies were
incompatible. Policy 16(f) prevailed over HOU 2. The requirement set out in HOU 2 to
maintain a five year effective housing land supply and the Housing Land Requirement fixed
11
by the West Lothian LDP had no residual role. Consequently, there was no support in the
development plan for development of an unallocated greenfield site.
[23]
In any event, the proposed development did not comply with HOU 2, because it
would not be sustainable on account of its lack of integration with public transport and the
likely reliance on private cars that it would cause. It was further from the nearest railway
station and bus stops than was recommended by the relevant planning guidance (PAN 75).
For the same reasons, it did not comply with NRG 1 and TRAN 1. Due to the level and
quality of interconnectivity proposed, it was also contrary to NPF4 policy 15, which required
local living and 20-minute neighbourhoods, and to Policy 13(b), which required direct, easy,
segregated and safe links to local facilities via walking, wheeling and cycling networks. As a
result of these issues, it was contrary to polices 1 and 2(a), which required, respectively, that
significant weight be given to the global climate crisis, and that development should be sited
to minimise lifecycle greenhouse-gas emissions.
[24]
Since HOU 2 did not support the proposed development, it was contrary to
Policy 9(b), because that provided that development of greenfield sites would only be
supported where it was explicitly supported by policies in the LDP. It did not comply with
ENV 2 and ENV 7 of the LDP either. Planning permission ought to be refused.
The Ministers' decision notice
[25]
The Ministers agreed with the reporter that the proposed development was contrary
to Policies 2, 9, 13, 15 and 16(f) of NPF4 and policies HOU 2, NRG 1, TRAN 1, ENV 2 and
ENV 7 of the LDP, and that planning permission ought to be refused.
[26]
Section 24(3) of 1997 Act provided that in the event of any incompatibility between a
provision of the NPF and a provision of a LDP, whichever was the later in date would
12
prevail. Policy 16(f) therefore prevailed. That policy could be read quite straightforwardly;
if there was no pipeline, then the exception permitting development on unallocated sites in
the first bullet point of 16(f)(iii) was not engaged. Until a pipeline was established in the
LDP, there would be a policy restriction on housing developments on unallocated sites,
other than those listed in the second, third and fourth bullet points of Policy 16(f)(iii).
[27]
Even if HOU 2 had applied, it would not have supported the development. The new
MATHLR target was the most up to date target for housing land within the development,
and ought to be applied. The projected housing delivery was substantially in excess of the
annualised MATHLR figure. As to the rest of the policies, the proposed development lacked
connectivity in terms of public transport and was likely to increase reliance on private cars.
For these reasons, the proposed development did not accord with the development plan and
there were no material considerations which would justify granting planning permission
despite this.
The appellants' submissions
[28]
The Ministers erred in their interpretation of Policy 16(f). Policy 16(f) was inoperable
because it depended on the existence of tools and concepts which would only come into
existence once a new-style LDP had been implemented. The clear intention of Policy 16(f)
was to set out a mechanism whereby sites not allocated in a new-style LDP, would only be
supported for development in limited circumstances. There was nothing in the policy that
explained how it was intended to relate to the existing and current requirements of an old-
style LDP. There was nothing in the material that accompanied NPF4, or in its consultation
draft, to suggest that Policy 16(f) was intended to apply before new-style LDPs were
prepared and adopted. There had been no consideration of or justification for the
13
implications of such a policy approach. The Ministers contended that Policy 16(f) could
apply where the development was for up to 50 affordable homes, but the appellants'
concern was about the application of the policy in relation to mainstream housing. If the
policy could not be applied rationally, including because there was no deliverable housing
land pipeline in place yet, it was of no relevance to the determination of a particular
planning application. The pre-existing policies of the West Lothian LDP, including HOU 2,
would remain unaffected and applicable until a new-style LDP was implemented. It was
not that Policy 16(f) was incompatible with the policies in the current, old-style LDP; it was
that 16(f) was simply inoperable at this time. Section 24(3) of the 1997 Act therefore did not
apply.
[29]
It followed that the requirement to maintain a minimum five-year effective housing
land supply remained applicable. The Ministers' conclusion that it had no residual role was
erroneous. Allocation of land in the existing West Lothian LDP was based on the Housing
Land Requirement. If that concept were redundant, the justification for those land
allocations would also fall away.
[30]
The Ministers' interpretation was irrational and contradictory to the overall purpose
of the development plan. The established purpose of the existing LDP and HOU 2 was to
enable development to ensure that the housing need in the area was met, including through
exceptional release of land for development (West Lothian Council v The Scottish Ministers
fell to be read and construed in that context. The Ministers' interpretation had the opposite
effect, namely of restricting or preventing those demands and needs being met, in
circumstances where housing targets had been significantly missed. Such a reading would
be consistent with Policy 16(f) itself and with NPF4 generally. The latest audit figures
14
showed that West Lothian Council was nearly 8,000 units short of meeting their Housing
Land Requirement target. The Ministers' approach would lead to an inexplicable
inconsistency between old-style LDPs which were adopted before NPF4, and old-style LDPs
which were adopted after its implementation. An exceptional housing release policy would
be permissible under the former, but not the latter.
[31]
The Ministers had erred in their interpretation and application of the Transitional
Provisions Regulations, and the 2023 Regulations. Regulation 27 of the 2023 Regulations
stated that LDPs published in accordance with the 2008 Regulations before 12 February 2023
would continue to apply. The Transitional Provisions Regulations did provide that action
programmes were to be republished as delivery programmes on their next update.
However, in the absence of a new LDP, a programme would relate to the pre-NPF4 statutory
regime and LDP. In those circumstances, the only effect of the Transitional Provisions
Regulations was to rename action programmes, "delivery programmes". They would not
affect their content. The new Aberdeen City Council delivery programme did not provide
an example of a delivery programme being produced alongside a republished, old-style
LDP. The Scottish Ministers had required Aberdeen City Council to make amendments to
their old-style LDP to make it compliant with NPF4, because it was to be republished after
the publication of NPF4. The result was a pragmatic hybrid, neither old nor new. West
Lothian Council remained under a duty under the 2008 Regulations to set out a list of
actions required to deliver each of its LDP policies and proposals, including HOU 2. Such a
duty was inconsistent with the Ministers' conclusion that the LDP and effective housing
land supply had no residual role. The appellants had not been given the opportunity to
make representations on either set of 2023 Regulations. This was a breach of Regulations 13
15
and 16 of the Town and Country Planning (Appeals) (Scotland) Regulations 2013 and of
natural justice.
[32]
The Ministers had erred in their conclusion that, in any event, HOU 2 did not
support exceptional release of the land for residential development. They had interpreted
HOU 2 by reference to NPF4 terms and concepts which were applicable only to new-style
LDPs. Those terms and concepts were not the applicable targets within the development
plan; rather they represented the minimum provision to be made in future LDPs. They were
merely the starting point. The Ministers ought to have had regard to the five year effective
housing land supply and made a broad assessment of the seriousness of the shortage
(Gladman Developments Ltd v The Scottish Ministers [2020] CSIH 28; 2020 SLT 898 at paragraph
[49]; Hallam Land Management Ltd v Secretary of State for Communities and Local Government
so.
[33]
The Ministers erred in their conclusion that it was not possible to calculate a five year
shortfall because there were fewer than five years remaining on the development plan. The
requirement to maintain a five year supply continued throughout the lifetime of the plan.
That conclusion was inconsistent with the approach the Ministers had taken in West Lothian
different methodology to calculate shortfall and had ultimately supported, and defended
their support, of the grant of exceptional release. In that appeal, the Ministers had indicated
that policies ENV 2 and ENV 7 had to be read as consistent with HOU 2. In determining the
present appeal on a different basis, the Ministers had erred in law and acted irrationally.
They were bound to adopt consistent decision-making unless circumstances indicated
otherwise (North Wiltshire DC v Secretary of State for the Environment [1992] 65 P & CR 137, at
16
145); Hallam Land Management Ltd v Scottish Ministers [2014] CSIH 110A, at paragraphs [32]-
[34]; Gladman Developments Ltd v Scottish Ministers [2019] CSIH 34, at paragraph [29]). They
had not provided any proper, adequate or intelligible reasons for this difference in
approach, or for their decision generally.
Submissions for the Scottish Ministers
[34]
All matters of planning judgement and the weight to be attached to any material
consideration fell within the exclusive jurisdiction of the decision-maker. The grounds of
appeal amounted to a disagreement with matters of planning judgement. Policy 16(f) did
form part of the development plan. It prevailed over HOU 2. In any event there was no
error in the interpretation and application of HOU 2, nor was there any error in the
calculation of effective housing land supply. The decision was a proper exercise of the
Ministers' planning judgement. Their reasons were adequate and intelligible.
[35]
Section 25 of the 1997 Act provided that applications for planning permission shall
be determined in accordance with the development plan unless material considerations
justified otherwise. Section 24(3) provided that insofar as there was an incompatibility
between a provision of the NPF and a provision of a LDP, the later in date would prevail.
The provisions in NPF4 relative to housing represent a change in policy to those in the now
redundant Scottish Planning Policy. The focus of the SPP had been the requirement to
maintain a five year supply of effective housing land at all times. Any shortfall in the
required five year effective housing land supply resulted in the application of a tilted
balance and the exceptional release of unallocated housing land. SPP provided that LDPs
were expected to allocate a range of sites which were, or were expected to become, apt for
development during the plan period. The SPP policy focussed on whether or not such
17
targets had been met and not on whether homes were in fact being built. That policy was
reflected in HOU 2 which supported release of additional sites on greenfield land to
maintain the five year effective housing land supply.
[36]
There was an obvious incompatibility between that approach and Policy 16(f), which
set out three circumstances which must be satisfied for unallocated land to be released.
These included that land may be released if delivery of sites happened earlier than
anticipated in the deliverable housing land pipeline; unlike under HOU 2, a failure to meet
targets would not result in exceptional release. The clear intent of this new approach to
exceptional land release is to encourage and prioritise the delivery of allocated housing. The
new policy rewarded success, for beating targets, rather than rewarding failure to meet
them. This was calculated by reference to a minimum amount of land to accommodate the
target number of housing units which were to be provided by each planning authority over
a ten year period (the MATHLR).
[37]
The fact that the appellants were unable to derive support from Policy 16(f) for their
proposed development did not mean that the policy was incapable of rational application.
Policy 16(f) was capable of operating to permit release of unallocated land for housing in the
context of old-style LDPs, including the West Lothian LDP. Its application was not confined
to, or dependent on, new-style plans. For example, if a proposal for new homes on
unallocated land were: (i) supported by an agreed timescale for build-out; (ii) otherwise
consistent with the plan spatial strategy and other relevant policies including local living
and 20 minute neighbourhoods; and (iii) for the delivery of fewer than 50 affordable homes
as part of a local authority supported affordable housing plan, then it would receive support
from Policy 16(f). There were other means by which the gap could be plugged. As
Aberdeen City Council had done, an old style LDP could be adopted and a delivery
18
programme published alongside it. The delivery programme would be required to contain
the delivery pipeline (the Transitional Provisions) Regulations, Reg 5 and the 2023
Regulations, Reg 24(c)). Alternatively, the fact that a planning authority had not yet
published a delivery pipeline could be presented as a material consideration to justify
derogation from the development plan (s 25(1), 1997 Act).
[38]
The appellants' arguments were a disagreement with the application of Policy 16(f)
to the facts and with the conclusion that there was no policy support for the proposed
development. If a proposed development did not accord with a particular policy, the result
was that the development did not have that particular policy support; the result was not that
the policy did not form part of the development plan and required to be left out of account.
It was a matter of planning judgement whether a proposed development would accord with
a particular policy in the development plan, or with the development plan as a whole.
[39]
The assessment of a five year effective housing land supply was a matter of planning
judgement (West Lothian Council v Scottish Ministers at [28]). There was no housing land
supply target beyond 31 March 2024. The Ministers were entitled to conclude that the
MATHLR formed part of the development plan and take it into account when addressing
the five year effective housing land supply. They were entitled to conclude that HOU 2
provided no support for exceptional release of unallocated release at the proposed
development site. They were also entitled, in the exercise of their planning judgement, to
conclude that the proposal was contrary to NPF4 policies 2, 9, 13 and 15 and LDP policies
NRG 1, TRAN 1, ENV 2 and ENV 7. The reporter and the Ministers had provided perfectly
acceptable and rational reasoning for their decisions.
19
Decision
[40]
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. Looking at the policies as a
whole there is an emphasis on quality, diversity and sustainability. That is clear from the
Policy Intent:
"To encourage, promote and facilitate the delivery of more high quality, affordable
and sustainable homes, in the right locations, providing choice across tenures that
meet the diverse housing needs of people and communities across Scotland."
These changes in policy have not swept away housing targets. Policy 16 establishes the
MATHLR, which is the minimum amount of land by reference to the number of housing
units to be provided by each planning authority in Scotland for a 10 year period. That figure
is specified in Annex E of NPF4. For West Lothian the figure is 9850. The LHLR is expected
to exceed the MATHLR. It is not however a requirement of the development plan that the
LHLR exceed the MATHLR.
[41]
It is not the case, as asserted in the grounds of appeal, that the court has determined
that the overall purpose of the development plan is to stipulate that the housing need in the
area is to be met. This court has not previously considered the content of NPF4 in relation to
20
housing policies. Even reading WLLDP and NPF4 together there is no support for the view
that the overall purpose of the plan is so constrained. As senior counsel for the Scottish
Ministers pointed out, Annex A of NPF4 describes the purpose of planning as being "to
manage the development and use of land in the long term public interest" and that, "A plan
led approach is central to supporting the delivery of Scotland's national outcomes and
broader sustainable development goals".
[42]
Policy 16 states that development proposals for new homes on land allocated for
housing in LDPs will be supported. Development proposals for new homes on land not
allocated for housing in the LDP will only be supported in limited circumstances. So far as
relevant here these are where the proposal is supported by an agreed timescale for build-
out, the proposal is in accordance with other relevant policies and where delivery of sites is
happening earlier than identified in the deliverable housing land pipeline. This is to be
determined by reference to two consecutive years of the Housing Land Audit evidencing
substantial delivery earlier than pipeline timescales and that the general trend is being
sustained. In other words the policy is designed 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. That policy is the antithesis of HOU 2, which allows for exceptional release to
maintain a five year effective land supply. HOU 2 requires that there be an annual audit of
housing land to monitor and review the land supply in accordance with the SPP and the
Strategic Development Plan. Strategic development plans have been abolished and the SPP
has been superseded by NPF4. For these reasons HOU 2 is inconsistent with NPF4 policy
16. Applying section 24(3) of the 1997 Act it follows that HOU 2 is not part of the
development plan.
21
[43]
Counsel for the appellants submit that there is nothing in NPF4 or elsewhere to
suggest that policy 16(f) is intended to apply before the preparation and adoption of new
style LDPs. That analysis is untenable and inverts the proper approach to interpretation of
the policy. There is nothing in statute, policy or guidance to suggest that the operation of
policy 16, or any part of it, is postponed to a point where "new-style" LDPs are in place.
[44]
Nor is it the case that there is no provision for the development of a pipeline in old-
style LDPs. While the provisions of the Regulations continue to apply to "old-style" LDPs
(Reg 27, 2023 Regulations), the effect of Regulation 5 of the Transitional Provisions
Regulations is that the requirement under s 21(9) of the 1997 Act to review, update and re-
publish the action programme is to be treated as a requirement to review the action
programme and to update and publish it as a delivery programme. We do not accept senior
counsel for the appellants' submission that this is merely a change of label. We can see no
reason why Parliament would merely change the name. That would simply add confusion
resulting in two types of delivery programmes; those under "old-style" LDPs which are
actually action programmes and those under "new-style" LDPs. It is notable that there is
already a delivery programme in place for the Aberdeen LDP. That plan was adopted in
2023 as an old-style LDP but at the direction of the Scottish Ministers the action programme
was published as a delivery programme. The delivery programme establishes, in
accordance with NPF4, a deliverable housing land pipeline. We do not accept senior
counsel for the appellants' submission that the Aberdeen LDP was a "pragmatic hybrid".
There is no provision in either statute or subordinate legislation for hybrid LDPs or hybrid
delivery programmes.
[45]
It is of course true that policy 16(f)(iii)(first bullet) cannot operate without the
provision of a pipeline and that can only be established with a delivery programme. That
22
does not mean that policy 16 cannot operate at all in the absence of a pipeline, or that it is
irrational not to postpone the operation of the policy until such time as a "new-style" LDP is
in place. That may be some considerable time away. As the reporter noted (para 32) this
does represent a transitional issue but the transition need not take a long time. The
Transitional Provisions Regulations make clear that a delivery programme may be provided
under old style LDPs. Section 21(9) of the 1997 Act provides that planning authorities must
keep the delivery plan under review. It must be updated and re-published when required
by Scottish Ministers, and when they think it appropriate to do so, but in any event within
two years of the publication of the last programme.
[46]
It is important to keep in mind the difference between development planning and
development control. An application for planning permission is to be determined in
accordance with the development plan unless material considerations indicate otherwise;
section 25 of the 1997 Act. One material consideration might arise if there was a perceived
lacuna in the development plan, or if the development plan was out of date or the planning
authority had failed to update the delivery programme.
[47]
Turning to the other grounds of appeal on the hypothesis that HOU 2 still applies the
appellants submit HOU 2 supports the exceptional release of land for residential
development. The first issue is whether or not there is a "target" and if so whether it has
been met. That again depends on whether the MATHLR is part of the development plan or
not. The appellants submit that it is not part of the development plan as the MATHLR is
only of relevance for "new-style" LDPs, it is not mentioned in NPF4, policy 16, and in any
event the MATHLR is not a target but a minimum.
[48]
The MATHLR is appended as Annex E to NPF4. The introduction explains that it
sets out the MATHLR for each planning authority in Scotland. It continues, "This is to meet
23
the requirement of section 3A(3)(d) of the Town and Country Planning (Scotland) Act 1997,
as amended." That section states that the NPF will contain targets for the use of land in
different areas of Scotland. The use of the word "target" in the section demonstrates that,
contrary to counsel's submissions, the MATHLR is a target. It is right to observe that there
is an expectation that the MATHLR will be exceeded in each LHLR, but it is nonetheless the
target. Moreover section 3A(3)(d) is in effect. It is not subject to any transitional
arrangements. There is no statement in the NPF or anywhere else to suggest that the
MATHLR is not to apply until "new-style" LDPs are in place. The Scottish Ministers'
decision letter states at paragraph 19 that the LHLR is expected to exceed the MATHLR. "In
the meantime the MATHLR represents the most up to date target for housing land within
the development plan." There is no error of law in the Ministers' approach.
[49]
The effective housing land supply identified by West Lothian Council to 2028 in the
2022 housing land audit is 12,383, which is more than the 9850 in the MATHLR. On that
basis the housing requirement is adequately met. The appellants nevertheless submit that it
was necessary for the reporter to make a broad assessment of the seriousness of the
shortage, and that he failed to do so. Whether there is a shortfall in any housing land supply
in any LDP area is a matter of planning judgement; West Lothian Council v Scottish Ministers
and another [2023] CSIH 3, per Lord Carloway LP at para 28. The Reporter sets out at length
the difficulties in calculating the effective five year land supply (paras 57 to 63). He
concludes that in the absence of a finding that a five year effective housing land requirement
is not being maintained HOU 2 is not engaged. These reasons include the fact that the plan
period ended on 31 March 2024 and that at the present stage of the plan period the HLR is so
out of date that no five year requirement for effective housing land, or even a requirement
for an adequate supply can sensibly be calculated. The Ministers nevertheless calculated
24
that the projected housing delivery is substantially in excess of annualised MATHLR figure
(para 24 of the decision letter). There is no error of law in that approach, which is
adequately reasoned.
[50]
The appellants also submit that the Scottish Ministers were wrong to conclude that,
even if all of the appellants' other submissions were correct they would have rejected the
application on the basis that it conflicted with ENV 2 and ENV 7. The appellants submit that
the Ministers have failed to provide any reason for departing from the approach they took in
the appeal for Hens Nest Road, East Whitburn dated 1 February 2022. Senior counsel for the
appellants submitted that the respondents were bound to adopt consistent decision-making
unless circumstances dictate otherwise; Hallam Land Management Ltd v Scottish Ministers
[51]
In passing it should be noted that the Hens Nest Road appeal engaged the tilted
balance where exceptional release of land could justify granting permission even where
there was a conflict with other policies. That is clear from the reporter's finding at
paragraph 24 of the Hens Nest Road decision letter. Secondly, the issue in Hallam was
consistency in the findings of a shortfall of the five year land supply. That was a generic
issue which was not site specific. ENV 2 and ENV 7 are environmental policies which
require the application of planning judgement to the particular locations. Thirdly the
appellants' application was found to be not only contrary to NPF4 Policy 16(f) but also
policies 2, 9, 13 and 15 and WLLDP policies NRG 1, TRAN 1 as well as ENV 2 and ENV 7.
There is no lack of consistency.
[52]
Finally there is no merit in the submission that the Ministers failed to provide any
proper, adequate or intelligible reasons for their decision. No separate submissions were
25
made in support of this contention. We find both the reporter's letter of recommendation
and the Scottish Ministers' decision letter to be comprehensive and well-reasoned.
[53]
The appeal is refused.
