3. How the presumption is dealt with in appeal decisions and the likely impact on future decisions of the Gladman Court ruling
3.1 The purpose of this section is to investigate how the presumption principle in SPP - "a presumption in favour of development that contributes to sustainable development" - is applied to planning appeal decisions in practice. Consideration is also given to the implications of the Courts decision in Gladman v Scottish Ministers to the application of the presumption.
3.2 It was decided to look at appeal decisions because an appointed Reporter is obliged to set out the reasoning for their decision. It is therefore relatively straightforward to identify which matters, including the SPP presumption, are taken into account.
3.3 Some appeal decisions (and Section 36 wind farm applications) are determined by the Scottish Ministers usually following receipt of a report written by the appointed Reporter. Such reports can be lengthy - typically 100 - 200 pages. Where there was a report case, the summary and conclusions chapter was read to establish the reasoning and key matters considered.
3.4 Three separate groups of appeal decisions were identified:
- 50 general appeal cases
- 7 housing cases where an exceptional release of housing land was argued
- 15 wind farm decisions, which included Section 36 cases.
3.5 The DPEA case management system (CMS) is a database used to manage appeal case work. For the first group, all planning permission appeals determined between September 2014 - August 2020 were identified. This amounted to approximately 1600 cases, although this includes withdrawn appeals and appeals where the DPEA has no jurisdiction. Fifty cases were selected using a random number generator on a calculator. To check the selected decisions were generally representative the outcome and year was established. It is considered that table 1 shows a generally representative sample.
|29 (58%)||21 (42%)||8||8||9||11||12||2|
3.6 The second group consisted of 7 randomly selected decisions from a previously identified database of 74 decisions relating to housing cases over 10 units where an exceptional release of land was argued in order to address a housing shortfall.
3.7 The third group consisted of 15 randomly selected wind farm decisions from all wind farm decisions (PPA & Section 36) issued between June 2014 - April 2020. The total number of decisions was 150 but this included cases that had been withdrawn or related to a wind farm but not necessarily the construction of a wind farm. This could be for example an appeal relating to an application seeking to amend a planning condition.
How the presumption was dealt with in the general group
3.8 In the 50 decisions, 12 (24%) mentioned the presumption. Five of these (10%), applied the presumption as a significant material consideration.
3.9 The types of development where the presumption was mentioned is set out in table 3.2 below
|Development type||Presumption mentioned||Presumption a significant material consideration|
(Note 1 - renewable energy relates to 2 X wind farms, 1 X anaerobic digester and 1 X heat plant)
(Note 2 - The presumption was a significant material consideration for the anaerobic digester because the development plan was considered to be out of date)
3.10 Where an appeal is allowed there may be no need to refer to the SPP presumption unless that was the main reason for allowing the appeal. There was no appeal decision in the sample where the presumption was the reason given for allowing the appeal on its own. The main reason for the presumption not being identified was that it was not an issue raised by the parties. Typically, an appellant would focus on the council's reason for refusal, which again, typically refers to development plan policies. It would not be normal practice for a Reporter to refer to a matter in a decision that had not been raised by the parties.
3.11 The cases where the presumption was mentioned tended to be for larger scale developments, with a concentration for housing proposals or proposals that more obviously relate to sustainable development (e.g. wind farms and waste management).
3.12 The cases where the presumption was a significant material consideration mostly related to housing development. This was because the development plan was out of date and/or there was a housing shortfall or an assumed housing shortfall. As set out in note 2 above, the only non-housing cases related to an 'out of date' development plan. There were no examples of the presumption applying as a significant material consideration because there were no relevant planning policies.
How the presumption was dealt with in group 2 - housing cases
3.13 In group 2 - housing cases, all 7 cases referred to the presumption. All applied the presumption as a significant material consideration either because a housing shortfall was identified (or assumed to occur) or the development plan was out of date or both.
3.14 It is not surprising that the presumption was a matter in housing cases selected because there was an argument for the release of unallocated housing land. This is because paragraph 125 of SPP says that where a housing shortfall emerges then the development plan should be considered out of date - and hence the presumption applies as a significant material consideration. The method of establishing whether there is a shortfall or not is therefore important and frequently disputed. Currently SPP sets out no method for establishing whether there is a shortfall. In the sample, a variety of approaches were adopted.
How the presumption was dealt with in group 3 - wind farm cases
3.15 In group 3 - wind farm cases, 14 of the 15 cases referred to the presumption. In 3 cases the presumption was a significant material consideration, all due to the development plan being 'out of date'.
How is development that contributes to sustainable development identified?
3.16 In group 1, 2 cases were considered to be examples of development that contributed to sustainable development, 10 were not. The main negative impacts for all 12 cases were as follows:
- Adverse impact on the character of the area - 6
- Neighbouring amenity - 4
- Overdevelopment - 2
- Heritage impacts - 2
- Unsuitable road design - 2
- Impact on schools - 1
- Lack of public transport - 1
- Impact on peat - 1
3.17 The main positive impacts considered were as follows:
- Economic benefits - 4
- Renewable energy contribution - 3
- Addresses housing shortfall - 3
- Complies with SPP principles - 2
- Acceptable use in principle - 2
- Reduce use of landfill - 1
3.18 For group 2, 1 case was considered to be an example of development that contributed to sustainable development and 6 were not. The main negative impacts for all 7 cases were as follows:
- Adverse impact on character of area - 5
- Impact on Green Belt - 4
- Loss of open space - 2
- Heritage - 1
- Wildlife - 1
3.19 The main positive factors were considered to be:
- Addressing housing shortfall - 4
- Economic benefits - 1
- Brownfield re-development - 1
3.20 For Group 3, 6 cases were considered to be examples of development that contributed to sustainable development and 8 were not. For wind farms the dominant consideration is balancing landscape and visual impacts against the benefits of renewable energy. Those proposals judged to have unacceptable landscape and visual impacts were not considered to be examples of development that contributed to sustainable development.
3.21 It should be noted that all decisions preceded the Court judgement in Gladman. The Court decision sets out how the presumption should be applied to housing cases. It should also be noted that in every case where the presumption was an issue, the decision as to whether the proposal was development that contributed to sustainable development mirrored the decision as to whether the proposal, overall, complied with the provisions of the development plan.
3.22 It is important to recognise that this research relies on a small sample of planning appeals. Planning appeals are a small proportion of the overall number of planning applications determined in Scotland.
3.23 However, it can be concluded that the presumption is not a matter considered in most planning appeals (in the order 70%-80%). The presumption as a significant material consideration is probably only a matter in approximately 10% of planning appeals. The presumption tends to become a matter for larger scale developments, particularly housing and renewable energy proposals. The presumption as a significant material consideration mostly applies to housing proposals. For renewable energy proposals the presumption as a significant material consideration only applies if the development plan is considered 'out of date.'
3.24 Prior to Gladman at least, the conclusion as to whether a proposal was sustainable almost always coincided with whether the proposal complies with the provisions of the development plan. It can therefore be said that whilst the presumption is a matter considered in a significant minority of appeals, it rarely (if at all) is determinative of the outcome on its own.
3.25 For housing cases, again prior to Gladman, whether the presumption becomes a significant material consideration is dependent on whether a housing shortfall is found. This in turn is dependent on the methodology used. As the current SPP provides no guidance as to the appropriate methodology there are frequent disputes between appeal parties with a wide range of different approaches adopted.
Likely impact on future housing decisions of the Gladman Court ruling.
Practice before the Court Ruling
3.26 In all the housing cases sample, the SPP presumption was considered and it was recognised that the presumption as a significant material consideration may apply. This was because the plan was out of date or there was a housing shortfall (or assumed to be one) or both. In all the cases, the Reporter made an assessment as to whether the proposal was considered to be development that contributes to sustainable development. Where it was decided that the proposal was not sustainable (6/7 cases) the presumption as a significant material consideration was assumed not to apply.
3.27 In all of the cases the council argued that there was no shortfall. However, the rationale for that argument varied. Likewise, in all the cases, the appellant argued initially that there was a shortfall. Again the rationale varied. There was no single methodology applied. In the 7 cases, the approach included reference to the local development plan examination, reference to a particular Housing Land Audit, the average method and the residual method. In the particular sample of cases, the Housing Land Requirement (HLR) was not used by any party.
3.28 Anecdotally, it has been explained, that the difficulty for Reporters has been that whilst SPP says there must always be enough effective land for 5 years, it does not explain how that should be calculated. Whilst there are two main methods, there are also numerous variations that can be adopted. It is almost inevitable that there are disputes over a range of parameters, including completion data, demolitions, content of HLAs, disputed sites etc. In the absence of a Scottish Government position, it appears that most Reporters are wary of ruling on any particular approach as this could set a precedent. Also, in the absence of an agreed methodology, it is impossible to conclude on the scale of any shortfall. A typical approach is to conclude a shortfall exists (or is assumed to exist) but not to quantify the scale of the shortfall. Only 2 of the 7 cases specified a particular scale.
3.29 Some developer interests have criticised the approach Reporters have adopted in housing appeals, claiming too much weight is attached to adverse environmental impacts and insufficient weight attached to the benefits of increasing the supply of effective housing sites.
Gladman Court decision
3.30 It should be noted that the decision refers to other court cases, which sets the legal context for this decision. Legal opinions may vary, but for the purposes of this section, it is assumed that the Court considers that the correct interpretation of SPP should be:
- To identify whether a shortfall exists, the HLR should form the basis of the calculation.
- The HLA should be the starting point for determining the available effective housing land supply
- Where a shortfall is identified, this shortage becomes a significant material consideration in favour of granting planning permission
- 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 and therefore there is no preliminary test as to whether a proposal is development that contributes to sustainable development.
Implications of the Court's ruling
3.31 It is likely that all of the 7 housing cases would have had to be addressed in a different way in the light of the court ruling. All would have had to broadly define the scale of the shortfall using the residual method and the HLR. This would then have to be compared with the effective supply in the latest HLA. The precise scale would depend on the circumstances for each council area. However, our research in Section 4 shows that this could be a very significant scale of shortfall for some council areas.
3.32 It should be noted that despite the court's clarification over the methodology, there would remain considerable scope for disputes to continue over detailed elements of the methodology, which would impact on the scale of a shortfall (e.g. completion data and how demolitions were to be considered etc.)
3.33 The Court specifically rejected the current practice of firstly deciding whether the proposal was sustainable. Without this, the presumption as a significant material consideration would apply in all the 7 cases. It should be noted that weighing a scale of a shortfall against impacts is not an easy matter in practice. This is likely to lead to variable judgements between cases and would be impossible to calibrate with any degree of accuracy. For example, would a 1000 house shortfall outweigh poor public transport access or would this only be outweighed by a 3000 house shortfall? Different council areas would always have different scales of shortfall because of their different sizes (e.g. Stirling compared to Edinburgh).
3.34 It is impossible to know with any certainly how the outcome for the 6 dismissed cases would have changed. That judgement would depend on the scale of the shortfall and the detailed impacts that can only be assessed after a site visit and consideration of detailed submissions.
3.35 If the principles in the Court ruling are adopted, it seems reasonable to conclude that there is potential for more arguments to be put forward that more urban edge green field sites should be exceptionally released (i.e. outwith the development plan) for housing development than was previously the case. The disadvantage of this approach is that each exceptional release site can only be considered in isolation. This is in contrast to sites that are allocated through the LDP, where a comparative exercise is possible. Our research in section 2 illustrates that in practice, exceptional release sites make only a modest contribution to completions over a 5 year period.