Scottish Planning Policy and Housing - technical consultation: analysis

Impacts of the proposed amendments

Impact on non-housing developments

The consultation paper states that the proposed amendments have been designed to address issues associated with planning for housing. While recognising that paragraphs 28, 29, 30, 32 and 33 have wider application, the Scottish Government does not expect that the proposed amendments will directly affect decisions relating to other types of development to the same extent as housing proposals.

Question 4: Do you agree that the proposed amendments will not directly impact on other (non-housing) types of development? If not, please provide evidence to support your view.

Responses to Question 4 are set out in Table 2 below.

Table 2: Question 4: Do you agree that the proposed amendments will not directly impact on other (non-housing) types of development?

Respondent type	Yes	No	N/A	Total
Organisations
Community Council, Residents’ Association or Civic Trust	15	3	2	20
Energy Supplier, Developer, Association or Body		13		13
Greenbelt Campaign Group	5			5
Housing Developer, Landowner or Investor		38	2	40
Local Authority or Planning Authority	21	1	2	24
Planning, Development, Real Estate or Legal Firm or Consultancy	2	20	3	25
Public Body			3	3
Representative Body or Professional Institute	3	8	3	14
Third Sector	3		3	6
Total organisations	49	83	18	150
% of organisations answering question	37%	63%
Individuals	80	9	5	94
% of individuals answering question	90%	10%
All respondents	129	92	23	244
% of all respondents answering question	58%	42%

Please note that, in a very small number of cases where a respondent’s answer at the closed question was clearly at odds with their additional comments, the answer to the closed element has been changed to match the comments.

A majority of respondents answering the question - 58% - agreed that the proposed amendments will not directly impact on other (non-housing) types of development, while 42% disagreed. However, there was a marked difference between the views of individual respondents where 90% agreed that other types of development would not be impacted, and organisations where only 37% agreed.

Among organisations answering the question, Community Council, Greenbelt Campaign Group, Local Authority and Third Sector respondents were likely to agree, while Housing Developer, Planning Consultancy, Energy Supplier and Representative Body respondents were all likely to disagree.

To a large extent, respondents answering “Yes” at Question 4 had previously indicated support for removal of the presumption in favour of sustainable development at Question 1, while those answering “No” at Question 4 objected to removal of ‘the presumption’. However, a small number of respondents who supported removal of ‘the presumption’ did go on to identify types of non-housing development they thought would be impacted or to identify what they suggested would be positive impacts of the proposed amendments.

A total of around 165 respondents made an additional comment at Question 4.

The analysis below is divided according to the respondent’s answer to the closed question, with the comments of those who did not answer the question included where most appropriate.

The proposed amendments will not directly impact on other (non-housing) types of development

Respondents who did not foresee direct impacts on non-housing development often made limited additional comments. Residents of Quarriers Village along with associated Greenbelt Campaign groups and Community Councils argued that genuinely positive non-housing developments that accord with the principles set out in paragraphs 28 and 29 of SPP and which are aligned with paragraph 30 will continue to be supported, while developments not in accord with these principles should not be supported.

Other points, largely made by Local Authority respondents included that:

• The vast majority of applications for development are approved based on the principal policies in SPP on Sustainability and Placemaking, including the economic, environmental and social principles set out at paragraph 29.
• For non-residential applications, an implicit presumption in favour of employment-generating types of application is made in most instances, unless they adversely impact their surroundings or are unsuitably located. An appeal on the grounds of sustainable development for non-residential development due to a shortfall in supply is therefore unlikely to occur.
• The wording is clearly targeted at house building, not other non-housing types of development and existing wording which is also directly applicable to housing has not created confusion.
• The proposed changes would lead to greater certainty on questions of land supply and key considerations for decision making in housing applications and therefore would not impact on the considerations for other land uses and application types.

The proposed amendments will directly impact on other (non-housing) types of development

A majority of respondents who did not agree that the proposed amendments will not directly impact other (non-housing) development argued that the policy presumption applies to all development. The types of non-housing development mentioned most frequently were:

• Renewable energy.
• Housing-related infrastructure supported by developer’s contributions.
• Development types, technologies or places not specifically addressed in LDPs.

Reasons for the view that other development types will be affected by the proposed amendments included that:

• Of the various sections which the Scottish Government proposes to delete or change, only paragraphs 123 and 125 and PAN 2/2010 relate specifically to planning for housing.
• ‘The presumption’ applies where there is a shortfall in the 5 year land supply and also becomes a material consideration where LDPs are more than 5 years old or where their policies are out of date. Delays in local authorities updating LDPs were suggested not to be solely COVID-related with one respondent suggesting that, at the time of writing, eleven of the LDPs within Scotland are older than 5 years. There will therefore be development needs not anticipated when plan was adopted.
• The presumption in favour of sustainable development is a major element of SPP and its removal could remove important flexibility from the planning system.

Renewable energy

Renewable energy projects were frequently thought to be impacted by the proposed amendments with some respondents noting this would be the case whether projects were proceeding under the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) or other legislation including the Electricity Act 1989. Potential negative implications with respect to a green recovery from COVID-19 were highlighted and the proposals were suggested to represent a move away from the Programme for Government of September 2019 when the First Minister highlighted the need for planning policy to undergo a ‘fundamental review’ to ‘more radically reduce emissions’. It was also noted that the Climate Emergency Response Group’s report ‘Eight Policy Packages for Scotland’s Green Recovery’ (July 2020) suggested the Scottish Government should ‘Update existing planning guidance to enable new and existing onshore wind planning consents and enhance the competitiveness of Scottish projects’.

It was also argued that:

• Although the emphasis of the consultation is on maintaining the plan-led system under section 25 of the 1997 Act, that section does not apply to projects such as onshore wind farms greater than 50MW proceeding under the Electricity Act. As a result, there is no conflict to resolve between ‘the presumption’ and a plan-led system for such projects.
• A number of renewable energy section 36 Electricity Act developments coming to local inquiries in the next few months would be adversely impacted if the proposals in the consultation are taken forward.
• Renewables projects currently in the planning system could be impacted since Planning Authorities may refer to this consultation and the Scottish Government’s intent and afford ‘the presumption’ minimal weight by treating the consultation as a material consideration. Some respondents expressing this opinion thought it still to be of concern after the clarification provided in the letter of 4 September 2020 from the Chief Planner to Heads of Scottish Planning Authorities.^[10]

Respondents making these points, who came predominantly from the Energy Supplier group, concluded that the Scottish Government should retain ‘the presumption’ or, if it is changed, should immediately put in place a replacement of equal if not greater weight to ensure there is no adverse impact on the policy to encourage further deployment of renewables, and of onshore wind in particular.

With respect to existing challenges faced by onshore wind developments, one respondent noted that while paragraph 29 of SPP does reference giving due weight to net economic benefit and supporting climate change mitigation, it also calls for the protection and enhancement of cultural and historic environments, landscapes and the wider environment. Highlighting the extensive considerations for wind farm developments set out in paragraph 169 of SPP they suggested that, without the presumption in favour of sustainable development, the issues set out in paragraph 169 could attract undue weight set against the sustainable credentials of renewable energy.

It was also observed both that there have been significant developments in energy policy and targets since some LDPs were adopted and that some new plans do not reference the climate emergency or net zero targets.

Housing-related infrastructure

Many respondents, predominantly from the Housing Developer and Planning Consultancy groups argued that housing and other forms of development are inextricably linked, and that since housing development supports funding and delivery of infrastructure such as schools and transport links, housing should be considered as part of a whole system approach rather than in isolation.

It was also suggested that:

• Negative impacts on housing will have knock-on effects for other land uses with demand for retail space, offices and leisure facilities also slowing.
• The changes would run counter to the town centres first principle and sequential test for new development and will not assist in achieving a brownfield first approach or promoting sustainable and accessible mixed-use developments.

Development types, technologies or places not specifically addressed in LDPs

It was argued that the presumption in favour of sustainable development is important because although LDPs look forward, they cannot anticipate all new developments or technologies and ‘the presumption’ allows recognition of this as a material consideration without undermining the premise of the plan. Respondents suggested that removal of ‘the presumption’ and loss of discretionary powers through the removal of paragraphs 32 and 33 could lead to impacts on development types that are not specifically addressed through bespoke policies in LDPs, with huts given as one example. It was also suggested that transmission infrastructure does not readily benefit from specific policies in LDPs in relation to substation and overhead line infrastructure.

New technologies including renewable solar were also identified as developments that may not be anticipated in LDPs and for which it was argued there should be scope for planning officer discretion to take a wider view as to the contribution of the proposal to ‘sustainable development’.

With respect to land use it was suggested few LDPs specifically identify new locations suitable to meet the growing needs of the renewable energy industry. Removal of ‘the presumption’ was also thought likely to deter proposals for development that might generate employment on unallocated sites, or to negatively affect proposals for economic development purposes where there are no LDP allocations or policy provisions for such.

Other development

Small numbers of respondents referenced other business or development that they thought could be impacted by the proposed changes including:

• Mixed use sites.
• Essential infrastructure and waste-related infrastructure. The latter was suggested to pose a risk to zero waste plans.
• Tourism related development.
• Businesses looking to expand or restructure via the sale of redundant land for windfall opportunities.

Points on the consultation paper

In general, it was argued that the consultation paper does not present adequate evidence regarding potential impacts of the proposed amendments on other development types, and publication of evidence to support the Scottish Government’s position that only housing development will be affected by withdrawal of ‘the presumption’ was requested.

The title of the consultation was also suggested to be inappropriate, with only those with an interest in housing likely to respond.

Requirement for fuller impact assessments

Moving on to impact assessments, the consultation paper explains that the Scottish Government has considered the requirements for statutory impact assessments, including by screening the proposals in relation to the criteria for Strategic Environmental Assessment (SEA), Equalities Impact Assessment (EIA), Children’s Rights and Wellbeing Impact Assessment (CRWIA) and Business and Regulatory Impact Assessment (BRIA).^[11] The view at the stage of issuing the consultation paper was that a fuller assessment was not required, given the procedural and technical nature of the proposals.

Question 5: Do you agree that fuller impact assessments are not required? If not, please provide evidence to support your view.

Responses to Question 5 are set out in Table 3 below.

Table 3: Question 5: Do you agree that fuller impact assessments are not required?

Respondent type	Yes	No	N/A	Total
Organisations
Community Council, Residents’ Association or Civic Trust	16	3	1	20
Energy Supplier, Developer, Association or Body		7	6	13
Greenbelt Campaign Group	5			5
Housing Developer, Landowner or Investor		37	3	40
Local Authority or Planning Authority	20		4	24
Planning, Development, Real Estate or Legal Firm or Consultancy	3	16	6	25
Public Body			3	3
Representative Body or Professional Institute	4	8	2	14
Third Sector	4		2	6
Total organisations	52	71	27	150
% of organisations answering question	42%	58%
Individuals	79	12	3	94
% of individuals answering question	87%	13%
All respondents	131	83	30	244
% of all respondents answering question	61%	39%

Please note that, in a very small number of cases where a respondent’s answer at the closed question was clearly at odds with their additional comments, the answer to the closed element has been changed to match the comments.

A majority of respondents answering the question - 61% - agreed that fuller impact assessments are not required, while 39% disagreed. As at Question 4 there was a marked difference between the views of individual and organisational respondents: while 87% of individuals agreed fuller impact assessments are not required, only 42% of organisations took this view.

Among organisations answering the question, Community Council, Greenbelt Campaign Group, Local Authority and Third Sector respondents were likely to agree, while Housing Developer, Planning Consultancy, Energy Supplier and Representative Body respondents were all likely to disagree.

Around 145 respondents made an additional comment at Question 5.

Fuller impact assessments are not required

Those who agreed with the Scottish Government’s view that fuller impact assessments are not required made limited comments beyond noting this agreement. Other reasons given (each by only one or a small number of respondents) included that:

• This is a procedural and technical proposal, and the changes are not significant enough to trigger further assessments or alter the original impact assessments.
• Since the proposed changes are intended to bring greater certainty to delivery of homes through the plan-led system and might also assist with better delivery of other intended plan-led outcomes, their impacts are accounted for in the plan-led process and should not require further assessment.
• It is an interim policy amendment and the forthcoming NPF4 will set out a new framework for planning.

Fuller impact assessments are required

Respondents taking this position often expressed a very different view of the scale and effect of the amendments being proposed. It was argued that

• ‘The presumption’ and SPP policy on maintaining an effective housing land supply have had positive effects in maintaining housing delivery where LDPs are out of date or where a housing supply shortfall has been identified, and deleting or diluting these policies would lead to negative impacts.
• The proposals should not be regarded as a procedural and technical exercise not requiring such assessment. They are in fact major or significant changes that will have a negative impact on supply of new homes, and of affordable homes. One respondent requested reassurance that the proposed changes will not affect the supply of affordable or social housing.

It was also argued that a number of National Outcomes or National Indicators will be impacted by proposals and that the consultation paper provides no evidence to support the Scottish Government’s view that changes will not impact National Outcomes.

The SEA pre-screening document provided with the consultation paper states that ‘The amendments themselves are a safeguard, to protect against misinterpretation and would not influence the outcome of planning decisions, and are not therefore expected to lead to any new environmental effects, directly or indirectly.’

However, respondents suggested that, in reality, the proposed changes to SPP will impact the determination of planning applications, or that the intention is to change the way planning decisions are taken otherwise there would be no point in making the amendments. Some respondents expressed a view that the letter of 4 September from the Chief Planner to Heads of Scottish Planning Authorities indicates that the proposals do have the potential to affect planning decisions, or asked that the Scottish Government should provide evidence that they will not. Examples of previous appeal cases were also cited to illustrate situations where respondents thought the proposed changes would influence the decision-making process.

In the absence of what were considered proper impact assessments, some respondents argued that the consultation process is flawed, not valid or not lawful and will be open to legal challenge. It was proposed that the Scottish Government should:

• Conduct proper screening assessments and prepare full assessments where appropriate.
• Reconsult based on adequate assessments and provide better evidence or explanation of the likely effects of the proposed changes. Current screening assessments were suggested to over-simplify impacts and it was argued effects on sectors other than housing have not been considered.
• Alternatively, withdraw the present consultation and carry out a full consultation on these matters during preparation of NPF4. Clarification as to how the present proposals align with the programme to develop NPF4 was also sought.

Comments on specific assessments

SEA: A full SEA was suggested to be necessary with a specific request that impacts in relation to onshore wind, other renewable energy targets and the ability to meet net zero targets should be considered. A Sustainability Appraisal Report, incorporating the requirements of the SEA was also proposed.

Potential environmental effects were suggested to include a reduced stock of energy efficient new homes, as well as lost opportunities to improve the quality and connectivity of the green network, to address deficiencies in public open space and to regenerate or re-use vacant and derelict sites and any other sites that unexpectantly fall out of productive use.

EIA and CRWIA: Arguments for further assessments with respect to equalities and children’s rights largely focused on impacts on affordability for those on low incomes and on children/young people if sufficient new homes are not delivered. A Health impact Assessment was suggested to be appropriate for similar reasons.

Increased unemployment rates and hardship in the homebuilding industry, wider construction sector and supply chains were also suggested as potential outcomes of the proposed amendments.

BRIA: Contrary to the Scottish Government’s view, some respondents argued that a BRIA is necessary, with potential impacts on businesses, wider economic issues and economic recovery all suggested. Particular impacts on renewables and housebuilding industries were highlighted.

Homes for Scotland quoted evidence gathered from their own members that ‘the presumption’ has been a consideration in approval of 37 planning appeals for around 8,000 homes in the past 6 years. They argued that on a pro-rata basis, removing ‘the presumption’ could mean that around 2,700 homes are not built, with resultant losses in jobs supported, spending in local economies, and monies to the public purse – all of which should be properly screened and mitigated.

It was also argued that the proposed changes could disadvantage development in Scotland relative to England where the presumption in favour of sustainable development remains and could result in Scotland falling behind the rest of the UK.

Other assessments

Finally, a number of respondents interpreted the question in respect of the impact assessments required in relation to individual development proposals while another suggested it would be useful to clarify that this question refers just to impact assessments of the proposed policy changes, not impact assessments for individual projects or policies.