- 1 Mar 2021
Date received: 7 Jan 2021
Date responded: 29 Jan 2021
Information about the finalised amendments to Scottish Planning Policy that were published on 18 December 2020:
1. On page 5 (of the Finalised Amendments) ( under “Evidence” reference is made to “recent litigation” and a weblink provided. However, this is simply a link to the Court of Session list of judgments, not specific decisions. Can you please confirm which case(s) (in addition to Gladman v Scottish Ministers which is referred to in this section) are being referred to here?
2. On page 6 (application of the presumption to date) reference is made to examples of the presumption being used to support homes without sufficient infrastructure – are you able to confirm which planning permissions this relates to?
3. Page 6 refers to a sample of appeal cases. Are you able to confirm the cases that made up the sample referred to?
4. Page 8 contains a statement that you 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 “up to date”. Are you able to provide any further detail on this point, and what evidence is being referred to in the context of “general practice”?
5. On page 16 under “Evidence” reference is made to “other methods” of calculating housing land supply being taken into account in your analysis of sample appeal cases. Can you please confirm the cases that made up the sample referred to? It would be particularly helpful to understand which cases in the sample applied a method other than the “residual method” to determine the housing land supply position for the purposes of that appeal.
6. On page 20 under “Evidence” reference is made to a review of a sample of renewable energy cases, including s36 consents. Can you please confirm which cases were included in the sample?
We are dealing with this aspect of your correspondence as a request for information under the Environmental Information (Scotland) Regulations 2004 (EIRs). As the information you have requested is 'environmental information' for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.
This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.
The attached annex contains a copy of the of the information you requested in relation to points 3, 5 and 6 above. This information contains the reference numbers for the cases used for respective samples. More detailed information on each case can be accessed through the Planning and Environmental Appeals database at Scottish Government - DPEA - Case List (scotland.gov.uk).
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have all the information you have requested at point 1 above other than the weblink provided in the Finalised Amendments. I can, however, add that the reference reflects the Scottish Government's involvement in recent litigations that have shown that there are different interpretations of the existing policy. In addition to the 2020 Gladman Developments v Scottish Ministers case (land at Carsemeadow, Quarriers Village, Kilmacolm), this includes, for example, Gladman Developments v Scottish Ministers 2019 (Campsie Road, Strathblane) and Graham’s The Family Dairy v Scottish Ministers 2019 (Airthrey Kerse in Bridge of Allan).
The reference at point 2 relates to responses to the consultation that was undertaken prior to the publication of the Finalised Amendments. The independent analysis of these responses is available at Scottish Planning Policy and Housing - technical consultation: analysis - gov.scot (www.gov.scot). Where consultees have given consent for their responses to be published, they are available at Scottish Planning Policy and Housing: Technical Consultation on Proposed Policy Amendments - Scottish Government - Citizen Space
On the fourth point, the Scottish Government does not hold the information that you have requested. While information on this specific point is not recorded, we are aware from our ongoing monitoring of cases and development plans that, in addition to the guidance provided in the SPP itself, there have been different interpretations about whether or not a plan is ‘up-to-date’ that variously refer to three main factors: the age of the plan; the continuing relevance of policies that are applicable in each case; and the role of the five year effective land supply.
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House