Scottish Planning Policy - amendments: housing land research paper - evidence

2 Analysis of appeal decisions

Purpose

2.1 This section of the research report reviews housing planning appeals since SPP 2014 was prepared, in particular, appeals relating to the exceptional release of housing land (i.e. on sites not supported by the development plan).

2.2 Homes for Scotland responded to the SPP consultation and carried out their own analysis of appeal decisions. This research has been reviewed. In addition, councils have been contacted in an attempt to estimate how many units from those developments granted upon appeal, have been completed.

Appeal assessment methodology

2.3 When the DPEA receives an appeal, it is entered onto the case management system, which is a database used to manage appeals. During this process, every appeal is classified as to its development type using standard descriptions. An appeal can be classified into more than one development type. One of the standard descriptions is "Housing (10 or more houses)".

2.4 However, this approach has only been uniformly applied since 1 Jan 2015. Some classifications have been applied retrospectively, but this has not been done on a systematic basis. It is therefore likely that appeals registered before 1 Jan 2015 will not have been classified by development type. Appeals that have been recalled (for determination by Scottish Ministers) or subject to a notice of intention can be current cases for many months before an eventual decision is issued. It is also accepted that human error can occur in any classification system and that planning permissions in principle often do not specify a number of houses.

2.5 The case management system was searched for all planning appeal decisions issued between 15 April 2015 - 19 Aug 2020 classified as Housing (10 or more houses). This resulted in 275 decisions. For the reasons set out in 2.4 above, the actual number of decisions may be slightly higher. Of this, 101 (39%) were allowed. The bulk of the reminder (156) were dismissed, although this figure would include a small number that had been withdrawn.

2.6 The 275 decisions were then screened to identify cases where the main issue was a claim for the exceptional release of non-allocated housing land because of a claimed housing land shortage. A first screening was done based on the description of the development (e.g. applications to amend conditions, student housing etc.) A final screening was carried out by reading the appeal decisions or intentions notices.

2.7 The original research identified 73 such cases. However, upon review a further case was discovered that should have been included. It is therefore considered that between 15 April 2015 - 19 August 2020 there were 74 appeal cases relating to the exceptional release of land. For the reasons set out in para 2.4 above, the real number might be slightly higher.

2.8 Through the screening process it can be said that most housing appeals relate to development within urban areas or on allocated sites, where in general terms, the dispute relates to design impacts.

2.9 The 74 appeals involved approximately 11,249 units. This figure can only be approximately as a significant proportion of these appeals relate to planning permission in principle, where any scale of development can be indicative. The overall average site size was 152 units. The average site size for dismissed appeals was 133 and for allowed appeals 197.

2.10 Of the 74 appeals, 27 (36%) were submitted by landowners, 24 (32%) were submitted by recognised housebuilders and 23 (31%) submitted by land agents (e.g. Gladman Developments Ltd and Hallam Land Management). The 22 allowed appeals involved 4328 units. The 52 dismissed appeals involved 6921 units.

Table 2.1 - Exceptional release housing appeals by council area (original)

Council	Cases dismissed	Units	Cases allowed	Units
Aberdeenshire	2	550
Angus	2	550
Borders	1	40	1	38
E. Dunbartonshire	2	290
E. Lothian	1	24	3	370
E. Renfrewshire	1	200
Edinburgh	7	601	5	1250
Falkirk	2	314	1	60
Fife	4	444	3	580
Glasgow	1	110
Inverclyde	3	193
Midlothian	1	47	2	420
N. Ayrshire	1	50
N. Lanarkshire	9	1101	3	980
Renfrewshire	6	669
S. Ayrshire	1	85
Stirling	4	964	1	170
West Lothian	4	689	3	460
Total	52	6921	22	4328

Table 2.2 - Exceptional release housing appeals by year (original)

Year	Cases dismissed	Units	Cases allowed	Units
2020	3	373	1	190
2019	9	1065	4	465
2018	15	2203	6	1418
2017	14	2015	2	300
2016	10	1226	5	1435
2015	1	39	4	520
Total	52	6921	22	4328

Homes for Scotland Assessment

2.11 In Homes for Scotland's submission to the SPP consultation, they refer to 152 planning appeals where the presumption has been a consideration. It is unclear from the submission how these appeals were identified and what is meant by the presumption being a consideration. Our view is that this may be an over estimate and cannot be replicated by DPEA data if it is intended to relate to all cases where an exceptional release of housing land was argued because of a housing land shortfall.

2.12 The submission says that of these 152 appeals, 37 were allowed and these are listed in Annex A. Each of these appeals have been read and 12 are not considered to be examples where exceptional release of land was a determining issue as set out in the following table.

Table 2.3 - Housing appeals incorrectly included in Annex A

Appeal ref	Address	Units	Comments
PPA-210-2043	Old Craighall, Musselburgh	44	Preferred site in MIR
PPA-210-2050	Tynemount Road, Ormiston	59	Extension to existing allocated site. No objection to principle of development
PPA-230-2151	Gilmerton Dykes Road, Edinburgh	61	Site in proposed LDP. No objection to principle of development
PPA-250-2239	Oak Avenue, Leslie	28	Allocated site with previous permission
PPA-390-2044	Kersebonny Road, Cambusbarron	42	Re-development of listed mill. No land supply issues
NA-ANG-009	Strathmartime, Dundee	200	Re-development of former hospital grounds, no objection to principle of development
PPA-230-2207	Turnhouse Road, Edinburgh	1400	Site allocated in LDP
PPA-210-2072	Mains Road, Dirleton	36	Site allocated in LDP
PPA-240-2059	Main Road, Maddiston	90	Re-dev of fire station within urban area
PPA-260-2110	Burnfield Road, Glasgow	165	Re-dev of vacant industrial land
PPA-340-2131	Murray Royal Hospital, Perth	58	Conversion of listed former hospital buildings, within urban area and on an allocated site
PPA-300-2057	Ferrylea, Forres	316	Allocated in LDP

2.13 PPA-160-2030, Farm Road, Duntocher was allowed on 17 September 2020. This decision was made following the court judgement in Gladman Developments Limited and can therefore be distinguished from the other appeals. This is now the subject of an appeal to the Court of Session.

2.14 There were also 4 decisions in Annex A (PPA-230-2131, PPA-200-2027, PPA-230-2129 and PPA-400-2071) which it is accepted do relate to an exceptional release of housing land but were not included on the DPEA list. Upon investigation, all 4 cases related to appeals that were recalled and determined by Scottish Ministers. This meant that all 4 were registered prior to 1 Jan 2015 and so were not classified at that time (now retrospectively corrected). It is accepted that they should have been in the above tables and tables 2.4 and 2.5 have been adjusted accordingly. However, in general terms approximately 5500 units have been granted under the current SPP policy (prior to the court's new interpretation) not 8000 suggested by Homes for Scotland.

2.15 However, in incorporating these decisions, for the reasons set out in para 2.4, it is necessary to recognise that the list may still not be comprehensive. In particular, there may be other relevant housing appeals that were dismissed in early 2015 and not classified.

2.16 The spatial distribution of the appeals allowed should be noted. Edinburgh has the highest proportion 37% of the allowed units. 77% of the allowed units relate to SESplan planning authorities.

Table 2.4 - Exceptional release housing appeals by council area (updated)

Council	Cases dismissed	Units	Cases allowed	Units
Aberdeenshire	2	550
Angus	2	550
Borders	1	40	1	38 (1%)
E. Dunbartonshire	2	290	1	122 (2%)
E. Lothian	1	24	3	370 (7%)
E. Renfrewshire	1	200
Edinburgh	7	601	7	2026 (37%)
Falkirk	2	314	1	60 (1%)
Fife	4	444	3	580 (11%)
Glasgow	1	110
Inverclyde	3	193
Midlothian	1	47	2	420 (8%)
N. Ayrshire	1	50
N. Lanarkshire	9	1101	3	980 (18%)
Renfrewshire	6	669
S. Ayrshire	1	85
Stirling	4	964	1	170 (3%)
West Lothian	4	689	4	740 (13%)
Total	52	6921	26	5506

Table 2.5 - Exceptional release housing appeals by year (updated)

Year	Cases dismissed	Units	Cases allowed	Units
2020	3	373	1	190
2019	9	1065	4	465
2018	15	2203	7	1698
2017	14	2015	2	300
2016	10	1226	7	1637
2015	1	39	5	1216
Total	52	6921	26	5506

2.17 We also attempted to identify how many units had been constructed to date at those sites exceptionally released through the above appeal decisions. The individual councils were contacted. Due to COVID-19 restrictions, replies were received over a period of time. Some were officer estimates, others relied on the latest Housing Land Audit (HLA). An HLA prediction is unlikely to accurately set out completions in October 2020. The completion data therefore needs to be treated with caution. Nonetheless, the following tables sets out the completions as reported by the relevant councils

Table 2.6 - Exceptional release housing site completions by Council area

Council	Units granted permission	Completions by Oct 20
Edinburgh	2023	705
East Lothian	373	143
Fife	580	72
Borders	40	0
Midlothian	300	19
West Lothian	740	0
SESplan subtotal	4056	939
East Dunbartonshire	122	45
North Lanarkshire	997	50
Falkirk	70	0
Stirling	170	0
Total	5415	1034

(Note - permissions may vary between tables 2.4 and 2.6 due to subsequent changes in capacity and that appeal capacities are estimated from planning permissions in principle submissions)

Table 2.7 - Exceptional release housing site completions by year of approval

Year Granted	Units granted permission	Completions by Oct 20
2015	1096	218
2016	1754	737
2017	197	50
2018	1703	19
2019	665	0

(Note permissions may vary between tables 2.5 and 2.7 due to subsequent changes in capacity and that appeal capacities are estimated from planning permissions in principle submissions)

Conclusions

2.18 It is not possible to have precise data because of how DPEA classifies appeals. Planning appeals in any event only record a small proportion of the total number of planning applications. However, between April 2015 and August 2020 there were approximately 275 planning appeals relating to proposals for 10 or more houses. Of these 101 (39%) were allowed. We consider that during a slightly longer period there were 78 planning appeals relating to the exceptional release of housing land. Of these 78, 26 have been allowed. Therefore, the exceptional release of land cases are a minority of planning appeals.

2.19 Of the exceptional release housing appeals, 26 have been allowed relating to approximately 5506 housing units. We conclude that Homes for Scotland's submission overstates the number of units granted as exceptional release sites.

2.20 Based on information from councils, we estimate that of these 5500 units approximately 1034 had been completed by October 2020. It is important to note the spatial concentration of permissions and completions in the SESplan area in general and Edinburgh in particular (37% of units granted 77% of completions to date).

2.21 The completion information showed a time lag (not unexpected), between the grant of planning permission in principle and completions on site - typically 3 years.