In the planning world before National Planning Framework 4 ("NPF4"), a shortfall against a local development plan's housing land requirement offered a potential route towards development consent for housing on unallocated sites.
Where a shortfall could be established, the presumption in favour of sustainable development in Scottish Planning Policy became a significant material consideration which could only be overcome where adverse impacts demonstrably outweighed the benefits. This became known as the 'tilted balance' with an established shortfall effectively tilting the balance of decision-making in favour of granting consent for housing development on unallocated sites.
The adoption of NPF4 in February 2023 superseded Scottish Planning Policy and introduced a new approach to the exceptional release of housing land on unallocated sites. This new approach is contained in Policy 16(f) which provides a release mechanism for unallocated sites "in limited circumstances". NPF4 is now part of the statutory development plan and accordingly sits alongside the existing local development plans prepared by local authorities. However, NPF4 and the existing local development plans take quite different approaches to the release of housing land on unallocated sites.
The transitional arrangements for the adoption of NPF4 provide that "in the event of any incompatibility between a provision of the National Planning Framework and a provision of a local development plan, whichever of them is later in date is to prevail". The question of how to reconcile these approaches to the exceptional release of housing land for unallocated sites and whether or not an incompatibility exists between NPF4 and existing local development plans has accordingly been the subject of much debate in the various housing applications and appeals which have followed the adoption of NPF4.
In April 2023, the Scottish Ministers called-in one such planning appeal (for a proposed housing development on an unallocated site at Mossend, West Calder) for determination on the basis that "the appeal raises national issues in terms of the application of National Planning Framework 4". At the same time, numerous other live planning appeals for housing on unallocated sites were sisted (paused) pending the outcome of the Mossend Appeal.
The Scottish Ministers issued their decision in the Mossend Appeal in July 2023. The Ministers decided to dismiss the appeal and refuse planning permission for the development. They concluded that Policy 16(f) of NPF4 is incompatible with the relevant housing release policy in the West Lothian Local Development Plan (Policy HOU2) with the consequence that Policy 16(f) of NPF4 prevails and must be applied.
The Ministers acknowledged that there are aspects of Policy 16(f) which cannot be satisfied until the concept of 'the deliverable housing land pipeline', introduced by Policy 16(f), is established. However, Ministers were nonetheless of the view that Policy 16(f) has effect from the date NPF4 is adopted and that this new approach to the exceptional release of housing land is the one to be followed. As such, Ministers found that the requirement to maintain a five-year effective housing land supply and the housing land requirements established in local development plans "have no residual role". Likewise, Ministers found that the concept of the tilted balance "no longer has any effect".
In short, this decision indicates that NPF4 has shifted national policy towards a significantly more restrictive approach to the exceptional release of housing land on unallocated sites, at least in the short term until deliverable housing land pipelines are established and 'new-style' NPF4-compliant local development plans are brought forward.
The sists for the other planning appeals for housing on unallocated sites have now been recalled and those appeals are once again progressing. It will be interesting to see where the dust settles and how the Reporters approach the remaining appeals in light of the Scottish Ministers' analysis in Mossend.
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