As the housing crisis across Scotland deepens, the recently published decision of the Inner House of the Court of Session on the Miller Homes appeal at Mossend, West Calder, surely removes any hope of an immediate solution to the shortage of available housing land.

The Scottish Ministers had refused permission for Miller's planning application for 250 homes on the primary ground that the development was incompatible with Policy 16(f) of National Planning Framework 4 (NPF4) which sets out the limited circumstances in which development of new homes on land not allocated for housing will be supported.

Miller challenged the refusal primarily on the ground that 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. Until that happened, the pre-existing exceptional housing land release policies in the West Lothian LDP would remain applicable and with it a requirement to maintain a 5 year effective housing land supply. Latest audit figures showed a shortage of nearly 8000 units.

In dismissing the appeal, the court highlighted the changes which NPF4 has brought to the planning system in Scotland and to housing in particular. There is no longer a requirement to maintain a five year effective housing land supply. The operation of the "tilted balance" is a thing of the past.

The court acknowledged that the circumstances outlined in Policy 16(f) for the development of housing on non-allocated land, namely bringing forward more land where the supply of land to meet the housing target is going more quickly than planned, is the antithesis of the exceptional housing land release policy, HOU2, in the existing LDP which releases more land in order to maintain a five year land supply, but pointed out that the foundations for requiring, monitoring and maintaining a five year land supply have all been abolished or superseded by NPF4. This rendered the LDP policy inconsistent with Policy 16(f) and applying section 24(3) of the Town and Country Planning (Scotland) Act 1997 means that NPF4 takes priority.

The court held that Miller's submissions that there is nothing in NPF4 which suggests that Policy 16(f) is intended to apply to old-style LDPs was untenable and inverted the proper approach to interpretation of the policy. The court indicated that there is nothing in statute, policy or guidance to suggest that the operation of the policy was postponed to a point where new-style LDPs are in place.

The court also held that while Policy 16(f)(iii) first bullet point cannot operate without the provision of a housing pipeline, and that can only be established with a delivery programme, it does not mean that Policy 16 cannot operate at all in the absence of a pipeline. Furthermore, the court advised that action programmes which have been prepared for old-style LDPs can be reviewed and subsequently published as delivery programmes.

The court also considered whether in terms of the exceptional housing land release policy there was still a housing target and if so, whether it has been met. It held that the changes in policy under NPF4 have not swept away housing targets. The Minimum All-Tenure Housing Land Requirement (MATHLR) in Annex E to NPF4 is a target (a term which the Scottish Government has to date been at pains to avoid using) which applies now and in West Lothian the latest audit shows that the effective land supply exceeds the MATHLR by approximately 2500 units and on that basis the housing requirement is being met.

There are over a dozen appeals for housing development on unallocated land which were sisted pending the outcome of the Miller challenge. While at first glance it might be thought that these will all now be refused, the court does highlight the difference between development planning and development management and suggests that a perceived lacuna in the development plan or the development plan being out of date or the planning authority failing to update its delivery programme may be material considerations which could outweigh determination in accordance with the development plan under section 25 of the 1997 Act.

In the absence of material considerations, or a review of Policy 16(f) in NPF4, it seems inevitable that the housing crisis will continue over the next 5 years until local planning authorities allocate more land for housing in their areas under the new-style LDPs and remove some of the other barriers which are preventing current allocations from coming forward.

NPF4 policies on retail and biodiversity have also been considered by the courts. Neil Collar reviews the decisions in his blog entitled Interpretation of National Planning Framework 4.