Tilted Balance – it was good while it lasted?

Following the Court of Session decision in Gladman v Scottish Ministers, Scottish government is proposing to delete the presumption in favour of sustainable development from Scottish Planning Policy

22 July 2020

Friday afternoon saw publication of Scottish government’s draft consultation document 'The Scottish Planning Policy and Housing'. Although described as a technical consultation, the document is far more significant than that suggests, and will impact all development in Scotland, not simply housing.

The proposed changes are also described as being 'interim' ahead of publication of the draft NPF4 in September 2021. Two reasons are given for this unusual approach. First, is a claimed significant change to the context of planning for housing as a result of coronavirus. The second is the decision of the Court of Session in the recent appeal by Gladman Developments v Scottish Ministers.

The Gladman case concerned the application of the presumption in favour of sustainable development. Ultimately the Court told Scottish Ministers that their interpretation of the policy was not correct, and that there was a tilted balance in favour of granting of planning permission where certain triggers applied. 

Rather than accept the Court’s decision, Scottish Minister’s response is to delete the presumption in favour of sustainable development from national policy. 

SPP is, of course, Scottish government’s policy 'ball', and they are free to take it away if they want. But in deleting the presumption in favour of sustainable development, they would not merely be taking their ball away, as bursting it so it can never be used again.

In its defence to the Gladman case, Scottish Ministers described the presumption in favour of sustainable development as a 'key policy'.

It is surprising that Ministers are advocating deletion of its key policy in an interim 'technical' paper. More significantly, is the message deleting national policy supporting sustainable development sends out about Scottish government’s priorities within the planning system and more widely.

Sustainability and Net Zero are integral parts of Scottish government policy. Deleting policy that supports sustainable development appears to cut across those aims, and be at odds with the Scottish government’s sustainability agenda. 

This is an issue that has implications for all types of development, not simply housing.

So far as the claims regarding the impacts of the coronavirus on planning for housing are concerned, the authors of the document should perhaps be congratulated for their prescience, because they have provided no data or evidence to back up their predictions. 

The concern seems to revolve around delays in the preparation of local development plans, and that a number of these will become more than five years old in the coming months. It would have been very straightforward for the Chief Planner to issue guidance confirming that the five year period in SPP had been extended to say six or seven years. Similar changes could have been made to deal with any stall in housing delivery. Far more complex changes to planning legislation and policy have already been implemented in response to the pandemic, and this does not justify the scale of the proposed changes to SPP. The repeated references to the pandemic and the lack of hard evidence to back up the concerns, smacks, unfortunately, of opportunism.

The paper also makes claims about the negative impact SPP has on a development plan led system. That fundamentally misunderstands the decision of the Court in Gladman, and the picture the consultation paper seeks to paint is frankly alarmist.

SPP is already very clear that where a development plan is functioning properly, the presumption and titled balance are not engaged. 

However, the reality of the situation is that development plans do not always deliver, and in some cases local development plans are adopted with a shortfall in their housing land supply from day one.

The presumption in SPP and the ability it gives decision makers to facilitate delivery of new housing is an essential part of the system. It is one that has delivered hundreds of new homes (including affordable homes) since SPP was introduced in 2014. These new homes have been built and lived in without the destruction of the plan led system, or causing chaos to infrastructure delivery.

There is already widespread concern in the development industry principally about the implications of these changes, but also the manner in which they have been brought forward. 

Since the review of the Scottish planning system started in 2016, Scottish government has sought and received input and assistance from across the development industry on a wide range of issues. It is particularly disappointing, therefore, that a document of this magnitude has been issued with no meaningful prior discussion or engagement. 

Conversely, or not perhaps, the draft document is already being used by one Council to justify a refusal of planning permission, and its publication was welcomed almost immediately by the local authorities’ Heads of Planning group. 

There can be little doubt as to who Scottish Government’s Planning and Architecture team has listened to first and most closely. In that respect at least, Scotland’s planning system can be said to still operate a tilted balance.

Responses to the consultation close on Friday 9 October 2020.

To discuss this further, please contact Craig Whelton in our planning team.

Key contact

Craig Whelton

Craig Whelton Partner

  • Scottish Planning 
  • Real Estate
  • Compulsory Purchase and Compensation

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