Article by Marc Giles, Planning Partner at Ryden.
The consultation by Scottish Ministers in summer 2020 which sought to bring about fundamental changes to Scottish Planning Policy (SPP) in respect of housing has been quashed in a recent decision by the Outer House of the Court of Session.
The changes to SPP were proposed in response to the Inner House judgment in the statutory appeal by Gladman Developments Limited in respect of their appeal in connection with residential development at Quarriers Village, Kilmacolm. Two judicial reviews were heard together, one brought by Graham’s the Family Dairy (Property) Limited and McTaggart and Mickel Homes Limited and the other by Elan Homes Scotland Limited (“the Petitioners”).
In the case brought by the Petitioners the primary ground for challenge asserted that the consultation process was so unfair that it was unlawful due to misleading statements in the consultation documents, principally relating to statements that the proposed changes would not have an impact on planning decisions.
The court found that the consultation was unfair. The principal reason for this is that a reasonable reader would have been likely to rely upon the assurance that there would be no impact and not respond to the consultation, or base their comments on that assurance. The court found that it was incumbent upon the Scottish Ministers to make it clear that, when saying there would be no impact on decisions, they were comparing the proposed changes to how Reporters approached matters pre-Gladman.
Ryden Planning contributed to the consultation and found the process misdirected and misleading. The proposals brought forward did not ‘clarify’ in any reasonable meaning of that word. Rather, the proposals sought to change a fundamental aspect of current national policy.
The amendments proposed to SPP are another example of a persistent misunderstanding, within government, regarding how the delivery of all development and particularly residential development actually operates in practice. This gives rise to policy frameworks which act as a stumbling-block rather than as a stepping-stone.
This decision effectively returns planning policy for residential development to the post-Gladman position but it is likely that Scottish Ministers will not leave it there for too long and may seek to address the matter through National Planning Framework 4, or other policy changes.
For the time being, those in the housebuilding industry will be buoyed by the return of the ‘tilted balance’ in favour of any residential development where there is a shortfall in the 5-year effective housing land supply. The quashing of the PAN 1/2020 also means a return to debate over the appropriate methodology for calculating the 5-year effective housing land supply. Where planning authorities do have a shortfall, they may be faced with a raft of speculative applications or subject to planning by appeal.
Not an ideal situation within which to operate and perhaps the Scottish Government would be well advised to engage more openly with, and pay attention to, the views of those who are active within the planning and development industry.