When a housing emergency is not enough

In my blog in November 2023, I explored the difference in the definitions of crisis and emergency in the context of the Scottish Government, at that time, defeating a Labour motion to declare a housing emergency across Scotland, following declarations of local housing emergencies by Argyll & Bute, the City of Edinburgh and Glasgow.

By way of a reminder, dictionary definitions have a crisis as a time of intense difficulty or danger where action is required to prevent a possible and undesirable outcome. Whereas with an emergency, that undesirable outcome is already here and immediate action is required to address the issue.

Fast forward a year and we currently have a declared national housing emergency and 12 local authority housing emergencies.

The Scottish Government's action plan to address the housing emergency comprises 3 pillars - build more high-quality homes; the right homes in the right places; and a permanent home for everyone. And, the Housing Minister and Chief Planner issued a letter advising local authorities to adopt an ambitious approach to providing housing land and reminding decision makers that the intent of NPF4 Policy 16 (Quality Homes) is to encourage, promote and facilitate the delivery of more high quality, affordable and sustainable homes in the right locations.

Yet, 16 planning appeals for new housing have all been refused as being contrary to Policy 16. 18 residential appeals had been paused pending the outcome of the Miller Homes challenge of the Mossend decision and these have all now been determined: 1 was withdrawn, 16 were refused and one appeal for 125 units has been given a notice of intention to grant subject to a legal agreement.

This is not the place to review the finer details of each appeal decision (after all every appeal is, of course, determined on its own merits) and the decisions are all within the statutory period for challenge. But some common threads emerge from the appeal decision which demonstrate how the housing emergency is perceived by decision-makers and why the housing emergency is unlikely to be addressed any time soon.

• A shortage of land has not been identified as an important contributory factor to the housing emergency at national or local level.
• The housing emergency is not about a shortage of land to be solved by abandoning the development plan.
• There is no ministerial statement or instruction requiring a departure from development plans in the light of the housing emergency or anything to suggest that the Scottish Government intends to depart from planning policies set out in NPF4 in order to address the emergency.
• It is a sufficient response that the level of existing need can be considered in the process of the next local development plan.
• While the Chief Planner's letter advised that there is no hierarchy in the different parts of Policy 16 and no one part outweighs the other, it is only 16(a) (new homes on allocated land) and 16(f) (see below**) which provide policy on the location of housing development, and so proposals need to comply with one of these provisions in order to comply with Policy 16 as a whole.
• There is nothing in Policy 16(c) (aimed at improving affordability and choice) to suggest that where it supports a particular development, the locational requirements of Policy 16(f) can simply be set aside. Locational justification would be needed for the type of housing proposed.
• The fact that a proposed development will include affordable housing to address existing housing need is insufficient to demonstrate that such need cannot be met by development of existing allocated sites or that release of an unallocated greenfield site is required to meet such need.
• If there is no housing land pipeline in place, the effect is to remove the possibility of the exception provided by Policy 16(f)(iii) being triggered. The general restriction on developing non-allocated sites established by Policy 16(f) would still apply.
• Arguing that there has been a lack of delivery of the identified housing land supply runs contrary to the early release policy of early delivery of a pipeline.

The appeal which was upheld was found to be contrary to Policy 16(f)(iii) but in balancing the nature of the non-compliance against the material considerations, the Reporter in that appeal was of the opinion that the material considerations would outweigh the conflict with Policy 16(f)(iii) – a finding that other Reporters (and indeed the same Reporter) did not reach in the other 14 appeals, further demonstrating that every appeal needs to be considered on its own merits.

If the intent of Policy 16 is to encourage, promote and facilitate the delivery of more high quality, affordable and sustainable homes in the right locations, its practical application seems to be rather less positive and will clearly not address the shortage in safe, secure and affordable homes in the short term. Indeed, it might be argued to be exacerbating the problem.

A state of emergency suspends normal procedures until the emergency is resolved. Why then is a housing emergency not enough to suspend the application of Policy 16(f)?

The true test of a leader is how they respond in a crisis. A ministerial statement requiring a departure from Policy 16(f) in light of the housing emergency, as hinted at in the recent appeals, is surely the response that is needed now.