In our last article, we trailed the impending adoption of NPF4 by the Scottish Ministers and examined some of the policies of particular relevance to rural development.
With NPF4 becoming part of the development plan for all local planning authority areas across Scotland as of 9 am on 13 February 2023, in this article we take a closer look at the practical application of NPF4 in the planning decision-making process. Some guidance on the transitional arrangements has been issued by the Chief Planner.
NPF4 as part of the development plan
Planning applications require to be determined in accordance with the development plan for the relevant area unless material considerations indicate otherwise.
NPF4 now forms part of the statutory development plan across Scotland, along with the current local development plan ("LDP") applicable to the local area and any corresponding supplementary guidance. Strategic development plans and Scottish Planning Policy are no more.
Existing LDP land allocations are maintained, but in the event of any incompatibility between a provision of NPF4 and a provision in an LDP, whichever is the later in date will prevail. This means that until new LDPs are put in place, NPF4 will take priority in instances of conflicting policy.
New LDPs are expected to be prepared in a "timely fashion" and within 5 years of the adoption of NPF4 and some local authorities have already put the wheels in motion. Moray Council, for example, has just issued its "call for ideas" for its next LDP and Aberdeenshire Council is consulting on its new Development Plan Scheme.
NPF4 provides only limited support for development on unallocated sites, so it will be critically important for landowners to engage with the LDP process. In addition, the development plan will have a 10 year horizon, so if your land is not allocated in the LDP, it may be a decade before it is reconsidered.
Applying NPF4 policy
The Chief Planner's letter restates the existing legal position on development plans, namely that NPF4 must be read and applied as a whole. This is also set out in NPF4 itself (page 98). It is acknowledged that there may be conflicts between different policies within NPF4 and the weight to be attached to competing policies will be a matter for the decision-maker. In such instances factors in favour and against the development must be weighed up in the balance of planning judgement.
While many policies in NPF4 have a familiar ring to them, there are also new policies or changes in emphasis and the Chief Planner's guidance highlights how the Scottish Ministers expect certain policies to be applied and these should be borne in mind by landowners/rural developers and planning authorities alike:
Policy 1 – Tackling the climate and nature crises: While the climate and nature crises are to be "prioritised" in all decisions, Policy 1 has to be applied together with the other NPF4 policies and it is for the decision maker to determine how the "significant weight" to be accorded to Policy 1 plays out in the planning balance. The relative power of this policy largely depends, then, on individual decision makers.
Policy 2 - Climate mitigation and adaptation: In applying the ambitions of this policy to individual applications:
- the emphasis is to reduce emissions as far as possible rather than eliminate them altogether.
- there is no single accepted methodology for calculating and / or minimising emissions. Quantitative assessments are not expected for all applications and there are no specified thresholds of application or development type that require different levels of supporting information.
- The Scottish Government's guidance on carbon management for projects and programmes is a useful reference point for applicants and planning authorities until specific practice and methodologies become established.
Policy 3 – Biodiversity: There is no single accepted methodology for calculating and / or measuring biodiversity ‘enhancement’. In addition, it is acknowledged that some proposals will not give rise to opportunities to contribute to the enhancement of biodiversity, and it will be for the decision maker to take into account the policies in NPF4 along with material considerations in each case. A revised version of NatureScot's ‘Developing with Nature guidance’ is expected to be available shortly and will hopefully provide more guidance on the practical application of the policy.
Policy 16 - Quality homes – As the principal policy for housing, Policy 16 promotes a plan-led approach. With Policy 16 in force, the requirement to maintain at least a five year supply of effective housing land at all times has gone as has shortfalls in supply indicating LDP policies are not up-to-date. Also superseded is the presumption in favour of development that contributes to sustainable development and the concept commonly known as the ‘tilted balance’.
Where there is an incompatibility between policies, such as between a housing exceptions policy in an LDP and Policy 16(f) of NPF4, the latter will prevail. This means that housing development on an unallocated site is unlikely to be supported other than in a few, narrow exceptions: such as where the proposal is consistent with policy on rural homes; smaller scale developments within a settlement boundary or for proposals of less than 50 affordable units as part of a local authority supported affordable housing plan.
Policy 23 - Health and safety: LDPs should be informed by awareness of locations of concern for suicide and developments will need to demonstrate how they have addressed suicide risk. Reference should be made to Scotland’s Suicide Prevention Action Plan 2022-2025 and the approach taken by the Welsh Government.
Policy 27(d) - Drive through developments: There is useful clarification that “drive through developments will only be supported where they are specifically supported in the LDP” should not be treated as a moratorium or ban on such developments and that drive throughs are considered as an integral part of the wider development plan.
In determining the support for individual drive through applications, planning authorities may have regard to wider uses – particularly Class 1 and Class 3 - that are compatible with the drive through function being incorporated. Each application will depend on its individual facts and circumstances but regard should also be had to the wider policies within NPF4, including those relating to reducing emissions, climate change, improving town centres and supporting local living. Again, further guidance is indicated to be in the pipeline.
Any planning application or appeal already in the system - even at the minded to grant stage awaiting completion of a Section 75 agreement - will require to be considered under NPF4.
The Chief Planner acknowledges that "It is recognised that it may take some time for planning authorities and stakeholders to get to grips with the NPF4 policies, and in particular the individual LDP policies" and has advised that "In the NPF4 Delivery Programme, we have given our commitment to progress work on a new suite of guidance and advice that will support activity to deliver the policy intent of NPF4".
Applicants may, however, find themselves, initially, subject to considerable variation in practice and decisions as planning authorities work out their own interpretations of individual policies and overall approach, particularly as the guidance emphasises that the majority of the weight and judgement to be applied with NPF4 rests with the decision maker.
There will be an inherent level of uncertainty in the coming months, as everyone operating within both development planning and development management acclimatises to the new policy landscape in which we are living and working.
In the meantime, landowners and developers would be well advised to take a proactive approach and grasp the proverbial nettle so as to drive the change they want to see. Whether that be offering to submit supplementary supporting information to demonstrate why a particular development complies with relevant NPF4 policies or making an early start on the process of promoting sites that they wish to see allocated in the upcoming round of new LDPs.
As ever, if you are looking for further advice on the implications of NPF4 please get in touch with your usual Brodies' contact in the Planning Team.