On 19 July 2023, the Scottish Ministers dismissed the called-in housing appeal at Mossend in West Lothian. At a time of housing crisis, the decision effectively sweeps aside acknowledged shortfalls in housing land supply and makes it difficult to get permission for housing on unallocated sites until "new style" local development plans have been put in place under NPF4.
The significance of Mossend
The decision was long anticipated as the appeal centred around the thorny issue of the application of Policy 16(f) of NPF4 prior to deliverable housing land pipelines being established in NPF4-compliant LDPs.
Thirteen other housing appeals were sisted pending the Mossend decision, underlining the extent of the housing shortage across the country.
The Development Plan
As of 13 February 2023, the development plan comprised the West Lothian LDP and NPF4. Scottish Planning Policy (SPP) no longer has effect.
Under section 24 of the Town and Country Planning Act 1997, where there is incompatibility between policies in an LDP and an NPF, the policy that was adopted later is to prevail. Therefore, in instances of incompatibility between the LDP and NPF4, NPF4 would prevail.
The West Lothian LDP
The extant LDP for West Lothian has an exceptional land release policy which allows housing development on unallocated sites in certain circumstances, including where there is not a 5 year effective housing land supply (Policy HOU2). In such instances there was a presumption in favour of sustainable development (a.k.a. "the tilted balance").
West Lothian is acknowledged to have a shortfall in its 5 year effective housing land supply and as such Policy HOU2 was triggered.
NPF4
Policy 16(f) of NPF4 also deals with exceptional land release for housing and states:
"Development proposals for new homes on land not allocated for housing in the LDP will only be supported in limited circumstances where…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".
LDP v NPF4
The difference in approach under the LDP and NPF4 is therefore:
- under the current LDP unallocated sites can be released where allocated sites are not being delivered quickly enough;
- under NPF4, unallocated sites can only be released where allocated sites are being delivered too quickly (for 2 consecutive years).
The Appellants argued that Policy 16(f) could only apply once a "new style" LDP has been adopted: the concept of a deliverable housing land pipeline could not be part of the development plan as it does not exist yet. Accordingly, there was no incompatibility and Policy HOU2 in the LDP still applied. Given the shortfall in the effective 5 year land supply, permission should be granted.
The Ministers' decision
The Ministers agreed with the Reporter that Policy 16(f) took effect from the date NPF4 was adopted (13 February 2023), even though a deliverable housing land pipeline does not (and cannot) exist at present, and given that Policy 16(f) and Policy HOU2 address the same issue, under the terms of the Act, Policy 16(f) applies. There was nothing in NPF4 that suggested that it would not be effective until the "new style" LDPs had been adopted.
The appeal proposals did not meet the terms of Policy 16(f) and therefore permission was refused.
Implications
The consequence of the Ministers' decision is that applications for housing development proposals on unallocated sites are likely to be refused for the foreseeable future unless there are material considerations justifying approval contrary to Policy 16(f). While the shortfall in a 5-year effective land supply would previously have been a significant material consideration tilting the balance in favour of granting consent, that no longer applies. There will need to be site/area specific justification for permitting housing on unallocated land.
An application to challenge the Mossend decision in the Court of Session was lodged 24 August 2023, however in the meantime, landowners/developers need to focus on getting their sites allocated in new LDPs.
Even if the land isn't allocated for immediate development in the LDP period, if it is allocated as a longer-term site (proposed to be delivered within 7-10 years or 10+ years), Policy 16(f) allows it to be pulled forward if delivery of the shorter term sites is behind schedule (which is a more likely scenario than over-delivery).
The importance of allocation is reinforced by the fact that once new LDPs have been adopted under NPF4 they only require to be reviewed every 10 years, instead of every 5 years. Therefore, if land isn’t allocated (or at least identified as a reserve (10+ years) site) in the next tranche of LDPs, it will be extremely difficult to secure planning permission for housing on it for at least 10-15 years.
So, if you have land to promote, we would encourage active engagement with the relevant local planning authority as its embarks on preparation of its new LDP.
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