On 26th April, Scottish Ministers recalled a planning appeal relating to an unallocated site at Mossend, West Calder. Their determination was on the basis that "the appeal raises national issues in terms of the application of National Planning Framework 4."
The planning appeal, and its recall, represent the first real challenge we have seen in Scotland in the context of the new National Planning Framework (NPF4) and, importantly, its interpretation.
So, what are the issues at debate here? It all comes down to Policy 16 of NPF4, Quality Homes. This policy relates to housing numbers and the delivery of new homes in Scotland. Policy 16 essentially promotes the delivery of homes only on allocated sites identified in fresh Local Development Plans (LDP) other than in very limited circumstances. Those circumstances focus on delivering new homes ahead of programming in housing land audits. The issue is not just the policy wording, though there is debate surrounding providing much-needed homes. Rather, it is also how this policy is applied when Scottish Local Authorities are only now preparing the new style plans referred to by the Government in the context of the recently published NPF4.
We know that there were always going to be challenges with the transition between NPF3 and NPF4, with NPF4 now becoming part of the development plan. The issue at debate here is whether Policy 16 applies in the absence of a new style of LDP. Policy 16 requires new LDPs to establish a Local Housing Land Requirement (based on the Minimum All-Tenure Housing Land Requirement (MATHLR)). However, the method for determining housing numbers in the previous LDPs did not relate to a MATHLR. Given this, part of the debate is whether Policy 16 can apply to current LDPs. In essence, there is a debate as to whether it can be applied retrospectively. This was the view put forward by Senior Counsel and submitted as part of the appeal at Mossend.
The application of planning policy is an issue of planning judgment, but the matters raised in the Mossend appeal have the potential to shape how NPF4 is interpreted and, therefore, how future decisions are made, and this is a decision to keep our eye on!
As a result of the recall of the Mossend appeal, it appears that all housing appeals on non-allocated sites in Scotland currently being decided by the Directorate of Planning and Environmental Appeals (DPEA) have now been sisted, which will no doubt cause concern across the industry, with DPEA stating that:
"DPEA currently has before it other appeals which will now need to be placed in sist pending the issue of the Ministerial decision in that case. This is because decisions by individual Reporters in those other cases mustn't prejudice or otherwise undermine the pending ministerial decision."
Many of our residential clients and the sector as a whole are monitoring matters closely, particularly in the context of recognised housing shortfalls across many Council areas.
So, what does this mean for housing in Scotland? There needs to be some clarity around the interpretation and application of NPF4, over and above the limited transitional guidance provided. Ongoing uncertainty and likely further legal challenges will ultimately impact the delivery of much-needed housing in Scotland.