Scottish Planning Policy - finalised amendments: December 2020

2. The Presumption In Favour Of Development That Contributes To Sustainable Development

• Question 1 in the consultation paper focused on the presumption in favour of development that contributes to sustainable development.

• We proposed removing the statement that "This SPP introduces a presumption in favour of development that contributes to sustainable development."
• We also proposed removing paragraphs 32 and 33 of the SPP which explain how the presumption should be applied in development management. Paragraph 32 states that the presumption will be a material consideration for proposals that do not accord with up-to-date development plans. Paragraph 33 states that where relevant policies in a development plan are out-of-date the presumption will be a significant material consideration. Paragraph 33 also gives significant weight to the presumption if there is not enough 'effective' land available for housing development. A minor adjustment to the wording of paragraph 30 was also proposed for cross-referencing.
• The consultation paper did not propose changes to paragraph 29 of the SPP which sets out the principles of sustainable development in more detail.

Views

As set out in our consultation analysis report there was both support for, and opposition to, these proposals. In summary, the analysis of responses showed that there are strong and contrasting views on a number of issues:

• A large majority of individual respondents supported the proposals as did all members of the community and third sector groups and local authorities who indicated a clear view. In contrast, all energy and housing developers and all but one planning consultancy opposed the proposals. Representative bodies were evenly divided, with their position reflecting the sectors of their members.
• Many respondents supported the proposal to remove the overall wording on the presumption because:
• the proposed changes were considered consistent with a plan led system;
• considerable resources are spent on calculating and debating the 5 year effective housing land supply;
• there is concern about the impact of Court decisions on encouraging speculative / unsustainable development;
• there is doubt about the benefit of the presumption in addressing a shortfall in housing;
• there is agreement that there is no provision for a 'tilted balance' in the SPP; and
• it was recognised that the principles supporting sustainable development would remain in place.
• Many respondents also broadly agreed with changes to address the issue of plans being considered out-of-date (paragraph 33) but felt that clarification would still be required for handling of proposals where there are no relevant policies.
• Many respondents, largely energy and housing developers, opposed the proposal on the basis that:
• The presumption is important for housing delivery in responding to failures to provide sufficient land for housing development.
• The presumption is also relevant to non-housing developments.
• The presumption was considered to be clear and consistent with a plan-led approach.
• The Court's views on a number of recent statutory appeals clarifies the application of the SPP.
• The proposals would be more than a clarification or a technical change and so the matter should be addressed in National Planning Framework 4 rather than an interim policy.
• There is wide support for sustainable development and the changes would send out mixed messages on this.
• The presumption does not bring forward 'bad' or unsustainable development.
• The presumption ensures that development can come forward where plans are out of date or not explicit.
• Paragraphs 32/33 play an essential role in keeping plans up to date.
• The changes would exacerbate the impacts of the pandemic on the housing supply.

Evidence

The following evidence has been taken into account in reaching our final policy position.

The need to clarify the policy

The extent of recent litigation^[ii] demonstrates that there are different interpretations of the existing policy. Legal cases, including Gladman vs The Scottish Ministers, have shown that the policy as currently drafted alters or tilts the balance of decision making.

The Scottish Planning Policy aims to achieve the right development in the right place; it is not to allow development at any cost. The presumption as part of this sought to support development which is sustainable. A 'tilted balance', which has the potential to alter the assessment on sustainability of development that would be inconsistent with our broader understanding of sustainable development, was not an intended feature of our policy. The Gladman case established that the assessment of whether development is sustainable involves the use of the tilted balance. It also brings out that, where paragraph 33 of the current policy is engaged, it is sufficient that development "contributes" to sustainable development for the tilted balance to apply.

In addition, the information we have gathered on the application of the presumption to date (see below) demonstrates the complexity of the policy as it stands.

The impact of the COVID-19 pandemic on housebuilding and development planning

It is clear that the restrictions arising from COVID-19 have impacted on the construction sector. Stakeholders reported to us that there were high levels of applications to the job retention scheme and furloughing of employees, at least in the initial period where restrictions applied, and business confidence earlier in 2020 was reported to be low.

In terms of available evidence, data set out by the Construction Leadership Forum^[iii] notes that output in the Scottish construction sector contracted by 28.6% in June 2020 compared to June 2019. The Scottish Housing Market Review (July – September 2020)^[iv] shows a significant fall in residential property sales (down by 63.5%) during the second quarter of 2020 and a subsequent strong recovery during July and August.

Figures relating to the housing supply (i.e. all sector new build completions) in 2020 are not yet available, but the affordable housing supply programme shows a significant fall in completions (by 84%). The extent to which the recent recovery signs arise from a catching up with activity that stalled during lockdown and will be sustained is not known at this point in time. However, Homes for Scotland gave evidence on the impact of COVID-19 to the Scottish Parliament's Economy, Energy and Fair Work Committee in May 2020.^[v] This set out that the prospects for long term recovery of the housing market are very uncertain and that it may be 2 to 3 years before construction rates return to 'anything like' pre-COVID levels. Homes for Scotland submitted evidence to the Advisory Group on Economic Recovery (AGER) which stated that "even on best case scenarios…we may expect a reduction in completions for the year of around 30 to 40% from where they would otherwise have been" and referred to low levels of consumer confidence being expected 'for a while'. Homes for Scotland also produced a Recovery Plan^[vi] which sets out the continuing impact of restrictions on capacity and the longer timescales required to complete homes.

Earlier this year we published advice on COVID-19 and development planning consultation and engagement. ^[vii] This aimed to balance the limitations on engagement arising from a ban on public gatherings and the need for physical distancing with the need to keep plans up to date as far as possible. It also took into account concerns expressed by industry representatives about their limited capacity to engage in development planning and housing land audits at that time. The advice acknowledges that some delays to development plan timescales would be unavoidable and this conclusion informed comments on this in the paper.

We have since noted evidence provided by some respondents which suggests that COVID-19 is not the primary reason for several plans becoming out of date. We have also taken into account information we gathered to inform the preparation of transitional arrangements for development planning which have since been published.^[viii] Delays are likely to arise in the coming months for a number of reasons, including the revised NPF4 timescales, planning reform and the ongoing work to shape new style development plans, resources, and the ability of planning authorities to engage effectively with stakeholders and the public during the pandemic.

Application of the presumption to date

It is not possible to identify every case where the presumption has been applied or to ascertain whether or not it has been the determining consideration in granting approval. In responses to the consultation, examples were provided of the presumption having led to developments being approved. Some of these examples aimed to illustrate a point that the presumption is necessary to ensure the need and demand for homes can be met. Other examples were provided of the presumption being used to support homes without sufficient infrastructure or which were counter to community views about the future of their areas.

Since the consultation paper was published, we have considered a sample of appeal cases to assess the current impact of the presumption on delivering homes. This shows that the presumption is generally only referred to in appeal decisions relating to larger developments. In appeal cases, where the presumption has been applied prior to the Gladman case, an initial judgement has generally been made by the Reporter as to whether the proposal was sustainable development. Where applicable (i.e. there was a shortfall in housing land available or the development plan policies were out of date), the presumption was then subsequently applied by Reporters. In terms of the scale of the application of the presumption to appeal cases to date:

• 275 decisions were issued for appeals relating to 10 or more homes between April 2015 and August 2020. Of these 101 were allowed.
• 78 appeals related to proposals for development outwith an urban area (exceptional release sites) to address a housing land shortfall and 26 cases were allowed.
• Approximately 5500 houses were granted planning permission in such cases. Whilst it is not possible to say whether these consents were entirely driven by the presumption, we do know that it was a consideration in the decision.

This evidence suggests that the presumption has been of less direct relevance to individual decisions than may be thought to be the case by some stakeholders.

We reviewed the Homes for Scotland evidence on the scale of cases approved as a result of the presumption, drawing conclusions on the number of homes that it has delivered. We consider this to be an over-estimate when compared with our own analysis. Whilst no data can provide a complete picture, our estimate is that since 2015, 5500 units (rather than 8000 suggested by Homes for Scotland) have been approved on the basis of the presumption. The role of the presumption in determining these applications cannot be fully determined. Our research also shows that a smaller proportion of these consents has been built to date (around 1000 homes over 5 years).

Implications of Gladman vs Scottish Ministers on the application of the presumption

We accept that some of these types of proposals may have different outcomes in light of the Court's decision. This is supported by some responses – for example an example of a recent appeal decision where the Reporter indicated that had the policy changes been made, his decision would have been different.

The Court's decision suggests that rather than the approach generally taken by Reporters to date:

• The decision-maker should first identify whether or not there is a shortfall, based on the housing land requirement and comparing this with the amount of effective land included in the 5 year programme in the latest Housing Land Audit to determine the scale of any shortfall.
• Where a shortfall is identified, this shortage becomes a significant material consideration in favour of granting planning permission. The scale of the shortfall should determine the angle of the 'tilt' in the tilted balance.
• To refuse planning permission, the adverse impacts must significantly and demonstrably outweigh the benefits of reducing the shortfall (i.e. the tilted balance applies).
• Identifying the scale of the shortfall is important because it sets the angle of "tilt". The greater the shortfall the greater the weight should be attached to helping reduce the shortfall and so the harder it should be to refuse planning permission. Helping address a housing shortfall is of itself almost inevitably a contribution to sustainable development.

Applying this approach, in the same sample of cases we reviewed the presumption would become a significant material consideration, before assessing whether or not the proposed development met the principles set out under paragraph 29.

Following the Gladman decision, more applicants may seek to argue the case for more exceptional releases of housing land. However, the influence of the presumption and the outcome of decisions cannot be predicted with any confidence. The Scottish Planning Policy should be read and applied as a whole. The planning judgement, and outcome, would remain variable given the breadth of considerations that would still need to be taken into account.

Key points

We have therefore concluded that:

• The presumption has some influence on decisions, but this appears to be limited and cannot be fully gauged.
• Appeal decisions show that because the presumption is complex and tends to be contested in large scale housing cases, it does take considerable time and resources to engage with it.
• Litigation, together with the polarised responses to this consultation demonstrate the range of interpretations of its meaning and application.
• The SPP presumption aimed to support sustainable development, not development at any price or in any location. Appeal decisions to date have generally focused first on ensuring proposals are sustainable in line with this intention.
• However the interpretation of the policy as established by the Gladman case and so the use of a strongly 'tilted balance', has the potential to mean that developments that may otherwise (i.e. without the use of a tilted balance) be judged to be unsustainable may be granted consent where there is a shortfall in the housing land supply.
• The pandemic is creating uncertainty. The proposal to remove the presumption was not primarily driven by the pandemic – but it did inform our consideration of paragraphs 123 and 125 (see below) as we expect that it will impact on the overall rate of housebuilding this year. Fuller data on the impact of COVID-19 will take some time to emerge but it is clear that this is a challenging period for construction including housebuilding, and that there is uncertainty about the timescale of future recovery. Available evidence shows that there will be an impact on the rate of homes constructed during the time when site restrictions were in place.
• We are aware from general practice that there is confusion / a range of interpretations about when plans (or the relevant policies) are, or are not, considered to be 'up-to-date'. More plans may become older than 5 years in the coming months for a range of reasons, but may well still contain relevant policies. A wide range of factors can influence whether local authorities review their development plans – including COVID-19, resourcing and the revised NPF4 timescale.
• Sustainable development remains a key objective of the Scottish Planning Policy. The UN Sustainable Development Goals are embedded across our national outcomes^[ix]. Section 3E of the 1997 Act applies to planning authorities exercising functions under Part 2 of the 1997 Act, and under section 3E(3) the Scottish Ministers may issue guidance for the purposes of section 3E. This is addressed by the Scottish Planning Policy including paragraphs 28, 29 and 30.
• We also accept that plans cannot include policies covering every eventuality and that although the development plan has primacy in all cases, some flexibility is needed.
• In response to these issues, section 7 sets out our final policy amendments.