NPF4 is the first Scottish national planning framework to be part of the "development plan". Understandably there has been a lot of attention on the new policy directions introduced by NPF4. It is worth reminding ourselves of the legal principles for applying those policies.
Statutory requirement
The general statutory requirement is well-known – a planning application must be determined in accordance with the provisions of the development plan unless material considerations indicate otherwise.
The whole plan
The courts have acknowledged that there can be tensions between development plan policies – the decision-maker has to decide "whether in light of the whole plan the proposal does or does not accord with it" (Edinburgh City Council v Secretary of State for Scotland 1998 SLT 120).
The need to focus on the "whole plan" is illustrated by the decision by the Scottish Ministers on a battery storage project in Lerwick. The Ministers held that the development was not supported by NPF4 policy 3 – biodiversity, but concluded the development was supported by NPF4 when read as a whole.
Interpretation
Reading NPF4 as a whole involves interpreting the policies. The courts have indicated that is a legal issue. The meaning of a policy is not therefore a process of planning judgment, but applying it might involve judgment.
The general principle is that unduly complex or strict interpretations should be avoided, and the words of a policy should be understood as they are stated, rather than through gloss or substitution. Application of that principle is illustrated in the three court decisions on NPF4.
Departures from the plan
It is inherent in the general statutory requirement that decisions can be made contrary to the development plan, if "material considerations indicate otherwise".
There are two recent examples where the Scottish Ministers have done that.
In relation to a proposed waste tyre plant at Linwood, the Ministers agreed with the reporter's conclusion that the proposal did not comply with NPF4 due to flood risk. However, they considered the significant and demonstrable benefits of the development on a brownfield site outweighed that departure.
The second example is a housing development in Nethybridge. Again, the Ministers agreed with the reporter that the proposed development did not accord overall with NPF4 policy 22 – flood risk. However, they considered that significant weight should be given to the benefits of providing affordable housing and redevelopment of a brownfield site.
Comment
These examples are a reminder that it is not essential for a development to comply with every NPF4 policy, or indeed any of those policies. The NPF4 era is no different from earlier eras: it's about correct interpretation of policies, looking at the development plan as a whole, and deciding whether there are other material considerations which support the development even if it is contrary to the policies.
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