Fraser Mitchell

In July, the Scottish government published a consultation on what it describes as a “technical amendment” to Scottish Planning Policy (SPP). The consultation proposes the removal of the policy presumption in favour of sustainable development from the Scottish planning system. The development industry has reacted swiftly and with notable concern. Councils, on the other hand, appear to have embraced the new proposals with some enthusiasm, prompting the chief planner to issue a letter on 4 September in response to reports that some planning authorities were already attaching significant weight to the consultation document. The letter reminded planning authorities that the consultation was not a direction from the Scottish Ministers and that the existing policy position remains in place.

So, why the concerns over a simple “technical amendment” to SPP? The branding of the consultation would be enough to make the most ardent spin doctor blush. Paragraph 5 of the consultation refers to recent Court of Session cases that have raised issues in connection with “current wording of the policy that we now believe require clarification”. The use of the term “clarification” is profoundly misleading. To clarify is to make a statement or situation less confused and more comprehensible. That job was performed by the Court of Session in the recent case of Gladman Developments Limited v Scottish Ministers [2020] CSIH 28. This technical amendment is no clarification. It is a scorched earth approach to a policy that the Scottish government formulated and adopted only 6 years ago, and one which they are now looking to remove following the court’s decision.

SPP itself is a “policy statement on how nationally important land use planning matters should be addressed across the country”. It is a centralised document containing policy that covers a range of planning matters including the preparation of development plans and the assessment of planning applications. At paragraph 33 it contains the presumption in favour of sustainable development.

The presumption applies only in limited circumstances. The statutory framework requires planning applications to be determined in accordance with the Development Plan unless material considerations indicate otherwise. The balance here favours the Development Plan. Where the Development Plan is out of date (i.e. more than 5 years old or where there is a shortfall in the 5-year effective housing land supply), the presumption becomes a significant material consideration. Where, therefore, there is a shortage in the 5-year housing land supply, planning permission should be granted unless the planning authority can demonstrate that there are significant and demonstrable adverse impacts that outweigh the application’s contribution to sustainable development. This process is referred to as the “tilted balance”, with the weight attributed to the presumption reflecting the extent of any shortage in the 5-year effective housing land supply.

The importance of the presumption should not be underestimated. It provides a release valve when Development Plans are out of date, and therefore cannot be relied upon. The corollary of this also applies – where Development Plans are functioning, the presumption will not form part of the determination process.

In the context of delivering housing, it provides a way for new development to meet any shortfall in the housing land supply which would otherwise not be addressed through the Development Plan. It does not lead to development at any cost – safeguards remain through the consideration of adverse impacts.

Just as the importance of the presumption should not be underestimated, nor should its removal from SPP. Its impact is likely to be felt in three broad areas.

The first relates to the government’s current commitment to ambitious carbon reduction by 2045. The credibility of a government seeking to do this in the face of removing a policy based on sustainable development is, at best, questionable.

The second concerns the consistency of policy making. In little over a quarter of a year the Scottish government has gone from declaring the presumption to be a key policy, to withdrawing it. This suggests a government unclear on its own policy aims and outcomes.

The third relates to the delivery of new homes. Out of date Developments Plans are a fact of planning life. If the delivery of homes is to be addressed exclusively by the plan-led system, planning authorities should be adequately resourced to produce well formulated plans within the relevant timescales. There is a chronic shortage of homes in Scotland. The last time Scotland as a nation delivered the number of homes required to meet annual need and demand was in 2007. This continuing shortage, which removal of the presumption will exacerbate, has two key affects. First, there will be fewer affordable houses available to people in genuine housing need. Second, the constrained supply of new housing stock means that prices will rise. This will squeeze more people out of the housing market, particularly young people looking to buy for the first time. Mortgage providers are currently moving away from “risky” mortgage products aimed at first time buyers. A shortage of housing stock will add a further barrier to those looking to own a home.

The Scottish government has justified its proposal to remove the presumption on the basis that the impact of COVID-19 may lead to Development Plans falling out of date before replacement plans are adopted. Removing the presumption because of this concern is far from proportionate. More learned commentators have suggested extending the lifespan of existing Development Plans as a measured and obvious way to overcome the government’s concerns. The person with an itchy foot would be well-advised to scratch it, rather than cut it off.

The consultation is open until 9 October and anyone with an interest in development, particularly house-building, is encouraged to respond to it. Details can be found here.

Fraser Mitchell is a real estate partner at Shoosmiths’ Edinburgh office. This article originally appeared in The Scotsman.