APPEAL BY MILLER HOMES LTD AGAINST THE SCOTTISH MINISTERS [2024] ScotCS CSIH

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2024] CSIH 11

XA41/23

Lord President

Lord Pentland

Lord Boyd of Duncansby

OPINION OF THE COURT

delivered by LORD BOYD OF DUNCANSBY

in the appeal under section 239 of the Town and Country Planning (Scotland) Act 1997

in the cause

MILLER HOMES LTD

Appellants

against

THE SCOTTISH MINISTERS

Respondents

____________

Appellants: J de C Findlay KC, Garrity; Shepherd & Wedderburn LLP

Respondents: Crawford KC, Way; Scottish Government Legal Directorate

3 May 2024

Introduction

[1]

Miller Homes appeal against the Scottish Ministers' refusal of their application for

planning permission for a residential development of 250 houses on farmland north of the

B792 at Mossend, West Calder. The Ministers' principal basis for refusing planning

permission was that the development was incompatible with Policy 16(f) of the Fourth

National Planning Framework (NPF4). NPF4 was adopted on 13 February 2023. The West

Lothian Local Development Plan has not yet been updated to introduce some of the changes

brought about by NPF4. The appellants contend that until such time as a new LDP is issued

by West Lothian Council, Policy 16(f) cannot take effect. Instead, they seek to rely on Policy

HOU 2 of the LDP. The Ministers' position is that Policy 16(f) supersedes and prevails over

the terms of HOU 2. The relationship between the newly implemented NPF4 and existing

LDPs is at the heart of this appeal.

Background

[2]

The appellants sought planning permission from West Lothian Council for the

development on 7 March 2022. West Lothian Council failed to determine the application

timeously. On 1 August 2022 the appellants appealed to the Ministers against that failure.

The Ministers appointed a planning reporter. The reporter held a hearing on the application

in December 2022.

[3]

On 26 April 2023, the Ministers called in the appeal in order to determine it

themselves, on the basis that it raised national issues in terms of the application of NPF4.

The reporter issued a report on 11 May 2023 in which he recommended that the Ministers

refuse planning permission. On 19 July 2023, the Ministers issued a decision notice

dismissing the appeal and refusing planning permission.

Relevant provisions of the Town and Country Planning (Scotland) Act 1997

[4]

The Planning (Scotland) Act 2019 made significant changes to the planning system in

Scotland by amending the Town and Country Planning (Scotland) Act 1997.

[5]

Section 1 of the 2019 Act inserts a new section 3ZA into the 1997 Act which specifies

that the purpose of planning is to manage the development and use of land in the long-term

public interest, defined as (a) contributing to sustainable development, or (b) achieving the

national outcomes within the meaning of Part 1 of the Community Empowerment (Scotland)

Act 2015. The national outcomes are measures across a range of government activity and

supporting United Nations Sustainable Development Goals.

[6]

Section 2 of the 2019 Act amended section 3A of the 1997Act making new provisions

for the National Planning Framework. So far as relevant it is now in the following terms:

"3A

National Planning Framework

(1)

There is to be a spatial plan for Scotland to be known as the 'National

Planning Framework'.

(2)

The National Planning Framework is to set out the Scottish Ministers'

policies and proposals for the development and use of land.

(3)

The National Planning Framework must contain--

(a)

a strategy for Scotland's spatial development,

(b)

a statement of what the Scottish Ministers consider to be

priorities for that development,

(c)

a statement about how the Scottish Ministers consider that

development will contribute to each of the outcomes listed in

subsection (3A),

(d)

targets for the use of land in different areas of Scotland for

housing, and

(e)

an assessment of the likely impact of each proposed national

development's lifecycle greenhouse gas emissions on achieving

national greenhouse gas emissions reduction targets (within the

meaning given in the Climate Change (Scotland) Act 2009).

(3A)

The outcomes are--

(a)

meeting the housing needs of people living in Scotland

including, in particular, the housing needs for older people and

disabled people,

(b)

improving the health and wellbeing of people living in

Scotland,

(c)

increasing the population of rural areas of Scotland,

(d)

improving equality and eliminating discrimination,

(e)

meeting any targets relating to the reduction of emissions of

greenhouse gases, within the meaning of the Climate Change

(Scotland) Act 2009, contained in or set by virtue of that Act, and

(f)

securing positive effects for biodiversity."

[7]

New section 3CA provides that the Scottish Ministers may not adopt a revised

National Planning Framework until a draft of it has been approved by the Scottish

Parliament. As senior counsel for the Scottish Ministers pointed out, the new NPF4 has a

democratic mandate. It was adopted by the Scottish Ministers and published in terms of

section 3CA(7), following approval of the Scottish Parliament on 13 February 2023.

[8]

Section 6 of the 2019 Act removes the requirement to prepare strategic development

plans. LDPs are dealt with in section 7 amending various provisions of the 1997 Act.

Section 15 of the 1997 Act now reads so far as relevant:

"15

Form and content of local development plans

(1)

A local development plan is a plan in which is set out, for land in the

part of the district to which it relates--

(a)

a spatial strategy, being a detailed statement of the planning

authority's policies and proposals as to the development and use of

the land taking account of the matters mentioned in subsection (5),

(b)

such other matters as may be prescribed, and

(c)

any other matter which the planning authority consider it

appropriate to include.

(1A)

The local development plan must also include targets for meeting the

housing needs of people living in the part of the district to which it relates.

...

(5)

The matters referred to in subsection (1)(a) are--

...

(ca)

the housing needs of the population of the area, including, in

particular, the needs of persons undertaking further and higher

education, older people and disabled people,

(cb)

the availability of land in the district for housing, including for

older people and disabled people,

...".

[9]

Section 21 deals with delivery programmes. These replace action programmes. So

far as relevant it provides:

"(2)

A planning authority who prepare a local development plan are to

prepare a delivery programme for the plan.

...

(9)

The authority must keep the delivery programme under review and

must update and re-publish it--

(a)

whenever required to do so by the Scottish Ministers, and

(b)

(subject to paragraph (a)) whenever they think it appropriate

to do so but in any event within 2 years after last publishing (or re-

publishing) it."

[10]

Section 24(1) of the 1997 Act defines a development plan as the National Planning

Framework, any strategic development plan which applies to the area, and any LDP which

applies to the area. Section 24(3) provides for the situation where a conflict arises between

any of the policies within the different plans:

"(3)

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 the later in date is to prevail."

[11]

Section 25(1) provides that where a determination is to be made under planning

legislation, it is to be made in accordance with the development plan unless material

considerations indicate otherwise.

[12]

In the course of this appeal counsel have referred to "new-style LDPs" as those to be

adopted following the adoption of NPF4. "Old-style LDPs" refers to those adopted before

that date. We shall adopt the same terminology.

Subordinate Legislation and Transitional Arrangements

[13]

The new provisions in primary legislation have been accompanied by the enactment

of new Regulations, in particular The Town and Country Planning (Development Planning)

(Scotland) Regulations 2023 (SSI 2023/101) (the 2023 Regulations). Regulation 24 sets out the

form and content of delivery programmes. The Planning (Scotland) Act 2019

(Commencement No. 12 and Saving and Transitional Provisions) Regulations 2023 (SSI

2023/100)) (the Transitional Provisions Regulations) makes certain savings in relation to local

development plans and transitional provisions in respect of action programmes under "old-

style" LDPs. An action programme is a document which sets out how a planning authority

proposes to implement its local development plan (s 21(6)), 1997 Act). It contains a list of

actions that require to be fulfilled in order to deliver each of the policies and proposals in the

relevant development plan and the timescale for conclusion of each action (reg 26, The Town

and Country Planning (Development Planning) (Scotland) Regulations 2008) (the 2008

Regulations). Regulation 5 of the Transitional Provisions Regulations provides that when an

action programme is reviewed, updated and republished, it must be republished as a

delivery programme. Delivery programmes operate in broadly the same manner as action

programmes, but in addition they must contain the expected sequencing of, and timescales

for, delivery of housing on sites allocated by the LDP (reg 24, 2023 Regulations).

NPF4 Housing Policy

[14]

The section on housing is headed "Quality Homes" and the policy intent is stated to

be:

"To encourage promote and facilitate the delivery of more high quality, affordable

and sustainable homes, in the right locations, providing choice across tenures that

meet the diverse housing needs of people and communities across Scotland."

The policy outcomes include the provision of land in the right locations to accommodate

future needs and demand for new homes supported by the appropriate infrastructure.

[15]

Policy 16 is the relevant housing policy. So far as relevant it is in the following terms:

"a)

Development proposals for new homes on land allocated for housing in LDPs

will be supported.

...

Development proposals for new homes on land not allocated for housing in

the LDP will only be supported in limited circumstances where:

the proposal is supported by an agreed timescale for build-out; and

the proposal is otherwise consistent with the plan spatial strategy and

other relevant policies including local living and 20 minute neighbourhoods;

iii

and...either;

delivery of sites is happening earlier than identified in the

deliverable housing land pipeline. This will be determined by

reference to two consecutive years of the Housing Land Audit

evidencing substantial delivery earlier than pipeline timescales

and that general trend being sustained;

the proposal is consistent with policy on rural homes; or

the proposal is for smaller scale opportunities within an existing

settlement boundary; or

the proposal is for the delivery of less than 50 affordable homes as

part of a local authority supported affordable housing plan."

[16]

The LDPs are expected to identify a Local Housing Land Requirement (LHLR) for

their area. This is the amount of land which is required to meet the housing target. This is

expected to exceed the 10 year Minimum All-Tenure Housing Land Requirement

(MATHLR). The MATHLR for each planning authority is the minimum amount of land that

is to be provided for development by each planning authority in a ten-year period. It is

expressed in terms of the number of housing units and is set by NPF4 (in Annex E). As

already explained the LDP delivery programme is expected to establish a deliverable

housing land pipeline for the LHLR. The purpose of the pipeline is to provide a transparent

view of the phasing of housing allocations so that interventions, including infrastructure,

that enable delivery can be planned: it is not to stage permissions. Representing when land

will be brought forward, phasing is expected across the short (1-3 years), medium (4-6 years)

and long-term (7-10 years). Where sites earlier in the deliverable housing land pipeline are

not delivering as programmed, and alternative delivery mechanisms identified in the

delivery programme are not practical, measures should be considered to enable earlier

delivery of long-term deliverable sites (7-10 years) or areas identified for new homes beyond

10 years. De-allocations should be considered where sites are no longer deliverable. The

annual Housing Land Audit will monitor the delivery of housing land to inform the pipeline

and the actions to be taken in the delivery programme.

[17]

There are a range of other NPF4 policies which are relevant for the purposes of

housing policy. These include Policy 2, - "Climate Change and Impact". Policy 9 covers

"Brownfield, vacant and derelict land and empty buildings." Policy 13 concerns

"Sustainable Transport". Policy 15 supports "Local Living and 20 Minute

Neighbourhoods". Its aim is to create neighbourhoods where people can meet the majority

of their daily needs within a reasonable distance of their home, preferably by walking,

wheeling or cycling or using sustainable transport options. Development proposals should

meet this aim, and in assessing a proposal, consideration will be given to whether there is

local access to public transport, shopping, and employment, among other things.

Relevant West Lothian LDP policies

Policy HOU 2

[18]

Policy HOU 2, "Maintaining an effective housing land supply", requires the council

to maintain, at all times during the life of the development plan, a minimum of a five year

effective housing land supply. The supply needed is worked out by an annual audit, which

is agreed with housing providers. HOU 2 allows the development of greenfield land where

there is a shortfall in the supply, provided that: (a) the proposed development will be in

keeping with the character of the settlement and local area; (b) any additional infrastructure

required as a result of the development is either committed or to be funded by the

developer; (c) the development will contribute to sustainable development; and (d) the

development is expected to deliver new housing within five years.

Other relevant policies

[19]

Policy NRG 1 aims to promote a series of principles concerning climate change and

sustainability. These are: the reduction of greenhouse gas emissions, promoted by enforcing

the statutory requirements of the Climate Change (Scotland) Act 2009; sustainable land use;

and sustainable design and development. Development proposals are expected to have

regard to the principles.

[20]

Policy TRAN 1 concerns "Transport infrastructure". The transport impact of a

development will require to be assessed, and development will only be permitted where

that assessment indicates that transport impacts are acceptable. The assessment must cover

all modes of transport and be approved by the council. Policy ENV 2 provides for "Housing

development in the countryside". Such development will only be permitted where it falls

into one of five categories: (a) the restoration of a brownfield site where there is no realistic

prospect of the site being returned to agriculture or woodland use and it has no significant

natural heritage value in its current condition; (b) the replacement of an existing house in the

countryside which is of a poor design or in a poor structural condition; (c) infill

development within the curtilage of an existing building group or infilling of gaps between

existing houses of a single plot width; (d) the conversion or rehabilitation of existing rural

buildings which the council deems worthy of retention because of their architectural or

historic merit; or (e) the proposal is supported by the council's lowland crofting policy.

ENV 7 covers "countryside belts and settlement setting". Again, a development requires to

meet certain criteria in order to be permitted under ENV 7, one of which is that it must

comply with policies ENV 1 6. Therefore, if a development does not comply with ENV 2,

it does not comply with ENV 7.

The reporter's recommendations

[21]

The proposed development would be contrary to Policy 16(f) of NPF4. The policy

took effect from the time of NPF4's publication. It represented a new policy approach to

exceptional release of unallocated land. It deliberately intended to limit the use of

unallocated land, except where certain criteria were met. The proposed development did

not meet criteria (ii) or (iii) and so the policy restricted the proposed development.

[22]

Regarding the appellants' argument that Policy HOU 2 was to be applied over

Policy 16(f), on a straightforward reading of NPF4, Policy 16(f) applied from the time of its

publication. The policymakers would have been aware that there would be a transitional

period during which the first bullet point of Policy 16(f)(iii), as a result of its reference to the

deliverable housing land pipeline, would not allow for exceptional release. They published

the policy notwithstanding. If it were otherwise, it would cause difficulties for coherence

and comprehensibility of the development plan. Given that Policy 16(f) covered the same

subject matter as HOU 2, but would produce a different effect, the two policies were

incompatible. Policy 16(f) prevailed over HOU 2. The requirement set out in HOU 2 to

maintain a five year effective housing land supply and the Housing Land Requirement fixed

by the West Lothian LDP had no residual role. Consequently, there was no support in the

development plan for development of an unallocated greenfield site.

[23]

In any event, the proposed development did not comply with HOU 2, because it

would not be sustainable on account of its lack of integration with public transport and the

likely reliance on private cars that it would cause. It was further from the nearest railway

station and bus stops than was recommended by the relevant planning guidance (PAN 75).

For the same reasons, it did not comply with NRG 1 and TRAN 1. Due to the level and

quality of interconnectivity proposed, it was also contrary to NPF4 policy 15, which required

local living and 20-minute neighbourhoods, and to Policy 13(b), which required direct, easy,

segregated and safe links to local facilities via walking, wheeling and cycling networks. As a

result of these issues, it was contrary to polices 1 and 2(a), which required, respectively, that

significant weight be given to the global climate crisis, and that development should be sited

to minimise lifecycle greenhouse-gas emissions.

[24]

Since HOU 2 did not support the proposed development, it was contrary to

Policy 9(b), because that provided that development of greenfield sites would only be

supported where it was explicitly supported by policies in the LDP. It did not comply with

ENV 2 and ENV 7 of the LDP either. Planning permission ought to be refused.

The Ministers' decision notice

[25]

The Ministers agreed with the reporter that the proposed development was contrary

to Policies 2, 9, 13, 15 and 16(f) of NPF4 and policies HOU 2, NRG 1, TRAN 1, ENV 2 and

ENV 7 of the LDP, and that planning permission ought to be refused.

[26]

Section 24(3) of 1997 Act provided that in the event of any incompatibility between a

provision of the NPF and a provision of a LDP, whichever was the later in date would

prevail. Policy 16(f) therefore prevailed. That policy could be read quite straightforwardly;

if there was no pipeline, then the exception permitting development on unallocated sites in

the first bullet point of 16(f)(iii) was not engaged. Until a pipeline was established in the

LDP, there would be a policy restriction on housing developments on unallocated sites,

other than those listed in the second, third and fourth bullet points of Policy 16(f)(iii).

[27]

Even if HOU 2 had applied, it would not have supported the development. The new

MATHLR target was the most up to date target for housing land within the development,

and ought to be applied. The projected housing delivery was substantially in excess of the

annualised MATHLR figure. As to the rest of the policies, the proposed development lacked

connectivity in terms of public transport and was likely to increase reliance on private cars.

For these reasons, the proposed development did not accord with the development plan and

there were no material considerations which would justify granting planning permission

despite this.

The appellants' submissions

[28]

The Ministers erred in their interpretation of Policy 16(f). Policy 16(f) was inoperable

because it depended on the existence of tools and concepts which would only come into

existence once a new-style LDP had been implemented. The clear intention of Policy 16(f)

was to set out a mechanism whereby sites not allocated in a new-style LDP, would only be

supported for development in limited circumstances. There was nothing in the policy that

explained how it was intended to relate to the existing and current requirements of an old-

style LDP. There was nothing in the material that accompanied NPF4, or in its consultation

draft, to suggest that Policy 16(f) was intended to apply before new-style LDPs were

prepared and adopted. There had been no consideration of or justification for the

implications of such a policy approach. The Ministers contended that Policy 16(f) could

apply where the development was for up to 50 affordable homes, but the appellants'

concern was about the application of the policy in relation to mainstream housing. If the

policy could not be applied rationally, including because there was no deliverable housing

land pipeline in place yet, it was of no relevance to the determination of a particular

planning application. The pre-existing policies of the West Lothian LDP, including HOU 2,

would remain unaffected and applicable until a new-style LDP was implemented. It was

not that Policy 16(f) was incompatible with the policies in the current, old-style LDP; it was

that 16(f) was simply inoperable at this time. Section 24(3) of the 1997 Act therefore did not

apply.

[29]

It followed that the requirement to maintain a minimum five-year effective housing

land supply remained applicable. The Ministers' conclusion that it had no residual role was

erroneous. Allocation of land in the existing West Lothian LDP was based on the Housing

Land Requirement. If that concept were redundant, the justification for those land

allocations would also fall away.

[30]

The Ministers' interpretation was irrational and contradictory to the overall purpose

of the development plan. The established purpose of the existing LDP and HOU 2 was to

enable development to ensure that the housing need in the area was met, including through

exceptional release of land for development (West Lothian Council v The Scottish Ministers

[2023] CSIH 3; 2023 SLT 175 at para [28]). NPF4 had not altered that purpose. Policy 16(f)

fell to be read and construed in that context. The Ministers' interpretation had the opposite

effect, namely of restricting or preventing those demands and needs being met, in

circumstances where housing targets had been significantly missed. Such a reading would

be consistent with Policy 16(f) itself and with NPF4 generally. The latest audit figures

showed that West Lothian Council was nearly 8,000 units short of meeting their Housing

Land Requirement target. The Ministers' approach would lead to an inexplicable

inconsistency between old-style LDPs which were adopted before NPF4, and old-style LDPs

which were adopted after its implementation. An exceptional housing release policy would

be permissible under the former, but not the latter.

[31]

The Ministers had erred in their interpretation and application of the Transitional

Provisions Regulations, and the 2023 Regulations. Regulation 27 of the 2023 Regulations

stated that LDPs published in accordance with the 2008 Regulations before 12 February 2023

would continue to apply. The Transitional Provisions Regulations did provide that action

programmes were to be republished as delivery programmes on their next update.

However, in the absence of a new LDP, a programme would relate to the pre-NPF4 statutory

regime and LDP. In those circumstances, the only effect of the Transitional Provisions

Regulations was to rename action programmes, "delivery programmes". They would not

affect their content. The new Aberdeen City Council delivery programme did not provide

an example of a delivery programme being produced alongside a republished, old-style

LDP. The Scottish Ministers had required Aberdeen City Council to make amendments to

their old-style LDP to make it compliant with NPF4, because it was to be republished after

the publication of NPF4. The result was a pragmatic hybrid, neither old nor new. West

Lothian Council remained under a duty under the 2008 Regulations to set out a list of

actions required to deliver each of its LDP policies and proposals, including HOU 2. Such a

duty was inconsistent with the Ministers' conclusion that the LDP and effective housing

land supply had no residual role. The appellants had not been given the opportunity to

make representations on either set of 2023 Regulations. This was a breach of Regulations 13

and 16 of the Town and Country Planning (Appeals) (Scotland) Regulations 2013 and of

natural justice.

[32]

The Ministers had erred in their conclusion that, in any event, HOU 2 did not

support exceptional release of the land for residential development. They had interpreted

HOU 2 by reference to NPF4 terms and concepts which were applicable only to new-style

LDPs. Those terms and concepts were not the applicable targets within the development

plan; rather they represented the minimum provision to be made in future LDPs. They were

merely the starting point. The Ministers ought to have had regard to the five year effective

housing land supply and made a broad assessment of the seriousness of the shortage

(Gladman Developments Ltd v The Scottish Ministers [2020] CSIH 28; 2020 SLT 898 at paragraph

[49]; Hallam Land Management Ltd v Secretary of State for Communities and Local Government

[2018] EWCA Civ 1808; [2019] JPL 63, Lindblom LJ at paragraph [52]). They had failed to do

so.

[33]

The Ministers erred in their conclusion that it was not possible to calculate a five year

shortfall because there were fewer than five years remaining on the development plan. The

requirement to maintain a five year supply continued throughout the lifetime of the plan.

That conclusion was inconsistent with the approach the Ministers had taken in West Lothian

Council v The Scottish Ministers [2023] CSIH 3; 2023 SLT 175, wherein they had adopted a

different methodology to calculate shortfall and had ultimately supported, and defended

their support, of the grant of exceptional release. In that appeal, the Ministers had indicated

that policies ENV 2 and ENV 7 had to be read as consistent with HOU 2. In determining the

present appeal on a different basis, the Ministers had erred in law and acted irrationally.

They were bound to adopt consistent decision-making unless circumstances indicated

otherwise (North Wiltshire DC v Secretary of State for the Environment [1992] 65 P & CR 137, at

145); Hallam Land Management Ltd v Scottish Ministers [2014] CSIH 110A, at paragraphs [32]-

[34]; Gladman Developments Ltd v Scottish Ministers [2019] CSIH 34, at paragraph [29]). They

had not provided any proper, adequate or intelligible reasons for this difference in

approach, or for their decision generally.

Submissions for the Scottish Ministers

[34]

All matters of planning judgement and the weight to be attached to any material

consideration fell within the exclusive jurisdiction of the decision-maker. The grounds of

appeal amounted to a disagreement with matters of planning judgement. Policy 16(f) did

form part of the development plan. It prevailed over HOU 2. In any event there was no

error in the interpretation and application of HOU 2, nor was there any error in the

calculation of effective housing land supply. The decision was a proper exercise of the

Ministers' planning judgement. Their reasons were adequate and intelligible.

[35]

Section 25 of the 1997 Act provided that applications for planning permission shall

be determined in accordance with the development plan unless material considerations

justified otherwise. Section 24(3) provided that insofar as there was an incompatibility

between a provision of the NPF and a provision of a LDP, the later in date would prevail.

The provisions in NPF4 relative to housing represent a change in policy to those in the now

redundant Scottish Planning Policy. The focus of the SPP had been the requirement to

maintain a five year supply of effective housing land at all times. Any shortfall in the

required five year effective housing land supply resulted in the application of a tilted

balance and the exceptional release of unallocated housing land. SPP provided that LDPs

were expected to allocate a range of sites which were, or were expected to become, apt for

development during the plan period. The SPP policy focussed on whether or not such

targets had been met and not on whether homes were in fact being built. That policy was

reflected in HOU 2 which supported release of additional sites on greenfield land to

maintain the five year effective housing land supply.

[36]

There was an obvious incompatibility between that approach and Policy 16(f), which

set out three circumstances which must be satisfied for unallocated land to be released.

These included that land may be released if delivery of sites happened earlier than

anticipated in the deliverable housing land pipeline; unlike under HOU 2, a failure to meet

targets would not result in exceptional release. The clear intent of this new approach to

exceptional land release is to encourage and prioritise the delivery of allocated housing. The

new policy rewarded success, for beating targets, rather than rewarding failure to meet

them. This was calculated by reference to a minimum amount of land to accommodate the

target number of housing units which were to be provided by each planning authority over

a ten year period (the MATHLR).

[37]

The fact that the appellants were unable to derive support from Policy 16(f) for their

proposed development did not mean that the policy was incapable of rational application.

Policy 16(f) was capable of operating to permit release of unallocated land for housing in the

context of old-style LDPs, including the West Lothian LDP. Its application was not confined

to, or dependent on, new-style plans. For example, if a proposal for new homes on

unallocated land were: (i) supported by an agreed timescale for build-out; (ii) otherwise

consistent with the plan spatial strategy and other relevant policies including local living

and 20 minute neighbourhoods; and (iii) for the delivery of fewer than 50 affordable homes

as part of a local authority supported affordable housing plan, then it would receive support

from Policy 16(f). There were other means by which the gap could be plugged. As

Aberdeen City Council had done, an old style LDP could be adopted and a delivery

programme published alongside it. The delivery programme would be required to contain

the delivery pipeline (the Transitional Provisions) Regulations, Reg 5 and the 2023

Regulations, Reg 24(c)). Alternatively, the fact that a planning authority had not yet

published a delivery pipeline could be presented as a material consideration to justify

derogation from the development plan (s 25(1), 1997 Act).

[38]

The appellants' arguments were a disagreement with the application of Policy 16(f)

to the facts and with the conclusion that there was no policy support for the proposed

development. If a proposed development did not accord with a particular policy, the result

was that the development did not have that particular policy support; the result was not that

the policy did not form part of the development plan and required to be left out of account.

It was a matter of planning judgement whether a proposed development would accord with

a particular policy in the development plan, or with the development plan as a whole.

[39]

The assessment of a five year effective housing land supply was a matter of planning

judgement (West Lothian Council v Scottish Ministers at [28]). There was no housing land

supply target beyond 31 March 2024. The Ministers were entitled to conclude that the

MATHLR formed part of the development plan and take it into account when addressing

the five year effective housing land supply. They were entitled to conclude that HOU 2

provided no support for exceptional release of unallocated release at the proposed

development site. They were also entitled, in the exercise of their planning judgement, to

conclude that the proposal was contrary to NPF4 policies 2, 9, 13 and 15 and LDP policies

NRG 1, TRAN 1, ENV 2 and ENV 7. The reporter and the Ministers had provided perfectly

acceptable and rational reasoning for their decisions.

Decision

[40]

It is important to understand the changes that NPF4 has brought to the planning

system in Scotland, in particular in relation to housing. For the first time the national plan

forms part of the development plan. The housing policies in the old Scottish Planning Policy

(SPP) have been largely swept away. Gone is the requirement to maintain an effective five

year housing land supply. Gone is the focus on whether targets have been met and whether

land allocated for housing was in fact being developed to meet any shortfall in supply. The

operation of the "tilted balance", analysed by this court in Gladman v Scottish Ministers 2020

SLT 898, is now a thing of the past. These changes to the development plan move housing

policy away from disputes over numbers to an approach which seeks to provide housing in

suitable locations, for example in 20 minute neighbourhoods. Looking at the policies as a

whole there is an emphasis on quality, diversity and sustainability. That is clear from the

Policy Intent:

"To encourage, promote and facilitate the delivery of more high quality, affordable

and sustainable homes, in the right locations, providing choice across tenures that

meet the diverse housing needs of people and communities across Scotland."

These changes in policy have not swept away housing targets. Policy 16 establishes the

MATHLR, which is the minimum amount of land by reference to the number of housing

units to be provided by each planning authority in Scotland for a 10 year period. That figure

is specified in Annex E of NPF4. For West Lothian the figure is 9850. The LHLR is expected

to exceed the MATHLR. It is not however a requirement of the development plan that the

LHLR exceed the MATHLR.

[41]

It is not the case, as asserted in the grounds of appeal, that the court has determined

that the overall purpose of the development plan is to stipulate that the housing need in the

area is to be met. This court has not previously considered the content of NPF4 in relation to

housing policies. Even reading WLLDP and NPF4 together there is no support for the view

that the overall purpose of the plan is so constrained. As senior counsel for the Scottish

Ministers pointed out, Annex A of NPF4 describes the purpose of planning as being "to

manage the development and use of land in the long term public interest" and that, "A plan

led approach is central to supporting the delivery of Scotland's national outcomes and

broader sustainable development goals".

[42]

Policy 16 states that development proposals for new homes on land allocated for

housing in LDPs will be supported. Development proposals for new homes on land not

allocated for housing in the LDP will only be supported in limited circumstances. So far as

relevant here these are where the proposal is supported by an agreed timescale for build-

out, the proposal is in accordance with other relevant policies and where delivery of sites is

happening earlier than identified in the deliverable housing land pipeline. This is to be

determined by reference to two consecutive years of the Housing Land Audit evidencing

substantial delivery earlier than pipeline timescales and that the general trend is being

sustained. In other words the policy is designed to bring forward more land where the

supply of land to meet the target is being met more quickly than envisaged in the delivery

programme. That policy is the antithesis of HOU 2, which allows for exceptional release to

maintain a five year effective land supply. HOU 2 requires that there be an annual audit of

housing land to monitor and review the land supply in accordance with the SPP and the

Strategic Development Plan. Strategic development plans have been abolished and the SPP

has been superseded by NPF4. For these reasons HOU 2 is inconsistent with NPF4 policy

16. Applying section 24(3) of the 1997 Act it follows that HOU 2 is not part of the

development plan.

[43]

Counsel for the appellants submit that there is nothing in NPF4 or elsewhere to

suggest that policy 16(f) is intended to apply before the preparation and adoption of new

style LDPs. That analysis is untenable and inverts the proper approach to interpretation of

the policy. There is nothing in statute, policy or guidance to suggest that the operation of

policy 16, or any part of it, is postponed to a point where "new-style" LDPs are in place.

[44]

Nor is it the case that there is no provision for the development of a pipeline in old-

style LDPs. While the provisions of the Regulations continue to apply to "old-style" LDPs

(Reg 27, 2023 Regulations), the effect of Regulation 5 of the Transitional Provisions

Regulations is that the requirement under s 21(9) of the 1997 Act to review, update and re-

publish the action programme is to be treated as a requirement to review the action

programme and to update and publish it as a delivery programme. We do not accept senior

counsel for the appellants' submission that this is merely a change of label. We can see no

reason why Parliament would merely change the name. That would simply add confusion

resulting in two types of delivery programmes; those under "old-style" LDPs which are

actually action programmes and those under "new-style" LDPs. It is notable that there is

already a delivery programme in place for the Aberdeen LDP. That plan was adopted in

2023 as an old-style LDP but at the direction of the Scottish Ministers the action programme

was published as a delivery programme. The delivery programme establishes, in

accordance with NPF4, a deliverable housing land pipeline. We do not accept senior

counsel for the appellants' submission that the Aberdeen LDP was a "pragmatic hybrid".

There is no provision in either statute or subordinate legislation for hybrid LDPs or hybrid

delivery programmes.

[45]

It is of course true that policy 16(f)(iii)(first bullet) cannot operate without the

provision of a pipeline and that can only be established with a delivery programme. That

does not mean that policy 16 cannot operate at all in the absence of a pipeline, or that it is

irrational not to postpone the operation of the policy until such time as a "new-style" LDP is

in place. That may be some considerable time away. As the reporter noted (para 32) this

does represent a transitional issue but the transition need not take a long time. The

Transitional Provisions Regulations make clear that a delivery programme may be provided

under old style LDPs. Section 21(9) of the 1997 Act provides that planning authorities must

keep the delivery plan under review. It must be updated and re-published when required

by Scottish Ministers, and when they think it appropriate to do so, but in any event within

two years of the publication of the last programme.

[46]

It is important to keep in mind the difference between development planning and

development control. An application for planning permission is to be determined in

accordance with the development plan unless material considerations indicate otherwise;

section 25 of the 1997 Act. One material consideration might arise if there was a perceived

lacuna in the development plan, or if the development plan was out of date or the planning

authority had failed to update the delivery programme.

[47]

Turning to the other grounds of appeal on the hypothesis that HOU 2 still applies the

appellants submit HOU 2 supports the exceptional release of land for residential

development. The first issue is whether or not there is a "target" and if so whether it has

been met. That again depends on whether the MATHLR is part of the development plan or

not. The appellants submit that it is not part of the development plan as the MATHLR is

only of relevance for "new-style" LDPs, it is not mentioned in NPF4, policy 16, and in any

event the MATHLR is not a target but a minimum.

[48]

The MATHLR is appended as Annex E to NPF4. The introduction explains that it

sets out the MATHLR for each planning authority in Scotland. It continues, "This is to meet

the requirement of section 3A(3)(d) of the Town and Country Planning (Scotland) Act 1997,

as amended." That section states that the NPF will contain targets for the use of land in

different areas of Scotland. The use of the word "target" in the section demonstrates that,

contrary to counsel's submissions, the MATHLR is a target. It is right to observe that there

is an expectation that the MATHLR will be exceeded in each LHLR, but it is nonetheless the

target. Moreover section 3A(3)(d) is in effect. It is not subject to any transitional

arrangements. There is no statement in the NPF or anywhere else to suggest that the

MATHLR is not to apply until "new-style" LDPs are in place. The Scottish Ministers'

decision letter states at paragraph 19 that the LHLR is expected to exceed the MATHLR. "In

the meantime the MATHLR represents the most up to date target for housing land within

the development plan." There is no error of law in the Ministers' approach.

[49]

The effective housing land supply identified by West Lothian Council to 2028 in the

2022 housing land audit is 12,383, which is more than the 9850 in the MATHLR. On that

basis the housing requirement is adequately met. The appellants nevertheless submit that it

was necessary for the reporter to make a broad assessment of the seriousness of the

shortage, and that he failed to do so. Whether there is a shortfall in any housing land supply

in any LDP area is a matter of planning judgement; West Lothian Council v Scottish Ministers

and another [2023] CSIH 3, per Lord Carloway LP at para 28. The Reporter sets out at length

the difficulties in calculating the effective five year land supply (paras 57 to 63). He

concludes that in the absence of a finding that a five year effective housing land requirement

is not being maintained HOU 2 is not engaged. These reasons include the fact that the plan

period ended on 31 March 2024 and that at the present stage of the plan period the HLR is so

out of date that no five year requirement for effective housing land, or even a requirement

for an adequate supply can sensibly be calculated. The Ministers nevertheless calculated

that the projected housing delivery is substantially in excess of annualised MATHLR figure

(para 24 of the decision letter). There is no error of law in that approach, which is

adequately reasoned.

[50]

The appellants also submit that the Scottish Ministers were wrong to conclude that,

even if all of the appellants' other submissions were correct they would have rejected the

application on the basis that it conflicted with ENV 2 and ENV 7. The appellants submit that

the Ministers have failed to provide any reason for departing from the approach they took in

the appeal for Hens Nest Road, East Whitburn dated 1 February 2022. Senior counsel for the

appellants submitted that the respondents were bound to adopt consistent decision-making

unless circumstances dictate otherwise; Hallam Land Management Ltd v Scottish Ministers

[2014] CSIH 110, per Lord Drummond Young paras 32 -34.

[51]

In passing it should be noted that the Hens Nest Road appeal engaged the tilted

balance where exceptional release of land could justify granting permission even where

there was a conflict with other policies. That is clear from the reporter's finding at

paragraph 24 of the Hens Nest Road decision letter. Secondly, the issue in Hallam was

consistency in the findings of a shortfall of the five year land supply. That was a generic

issue which was not site specific. ENV 2 and ENV 7 are environmental policies which

require the application of planning judgement to the particular locations. Thirdly the

appellants' application was found to be not only contrary to NPF4 Policy 16(f) but also

policies 2, 9, 13 and 15 and WLLDP policies NRG 1, TRAN 1 as well as ENV 2 and ENV 7.

There is no lack of consistency.

[52]

Finally there is no merit in the submission that the Ministers failed to provide any

proper, adequate or intelligible reasons for their decision. No separate submissions were

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> APPEAL BY MILLER HOMES LTD AGAINST THE SCOTTISH MINISTERS [2024] ScotCS CSIH_11 (03 May 2024) URL: http://www.bailii.org/scot/cases/ScotCS/2024/2024_CSIH_11.html Cite as: [2024] CSIH 11, [2024] ScotCS CSIH_11

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