This summary presents key findings from the analysis of responses to a consultation on Scottish Planning Policy (SPP) and Housing: Technical Consultation on Proposed Policy Amendments that ran from 17 July to 9 October 2020.
The consultation paper explains that the Scottish Ministers are consulting on proposed interim changes to SPP to clarify specific parts that relate to planning for housing. Once finalised the changes will apply over an interim period ahead of the adoption of National Planning Framework 4 (NPF4), to be published in 2022.
Number and profile of respondents
A total of 244 responses were available for analysis. The majority of respondents were organisations (150 respondents) with 94 individual members of the public also making a submission. A number of these individuals identified themselves as residents of Quarriers Village.
Among the organisations, housing developers (40 respondents), planning consultancies (25 respondents) and local authorities (24 respondents) were the largest respondent groups.
A number of organisations drew on or offered support to responses submitted by Homes for Scotland (referenced primarily by housing developers) or Heads of Planning Scotland (referenced primarily by local authorities).
Removing ‘the presumption’
The consultation paper explained that the Scottish Ministers propose to remove the sentence on page 9 of the SPP that introduces the presumption in favour of development that contributes to sustainable development (‘the presumption’). It was proposed that the policy principles in paragraphs 28 and 29 would be maintained as they have an important role to play in ensuring the planning system enables the right development in the right place, rather than allowing development at any cost.
Question 1: What is your view on our proposal to remove ‘the presumption’ from the SPP, through the changes set out?
All respondents answered Question 1, with many making a clear statement either in support of, or disagreement with, either the proposals more widely or the removal of ‘the presumption’ specifically. Of those who made a clear statement in support of or opposition to the proposed changes covered at Question 1, around 3 in 5 respondents gave their support, while around 2 in 5 opposed the proposals.
A large majority of Individual respondents supported the proposals as did all members of the Community Council, Local Authority, Greenbelt Campaign Group, Public Body and Third Sector groups who indicated a clear view. In contrast, all Energy Suppliers and Housing Developers and all but one Planning Consultancy opposed the proposals, while Representative Body respondents were evenly divided, with their position reflecting the sectors of their members.
Support for the proposals
Importance of a plan led system: Many of those supporting the proposal noted their support for a plan-led system, which they sometimes contrasted with a court-led system. It was argued that development plans have been subject to rigorous and transparent preparation processes and that they should take precedence to ensure that communities and infrastructure providers are provided with the certainty they are entitled to expect from the planning system.
There was also a view that resources, both in the public and private sectors, have been wasted in constantly debating housing numbers, site effectiveness and the most appropriate methodology for calculating the 5 year effective housing land supply, rather than concentrating on the delivery of quality housing on the ground.
There was specific reference to the determination from the recent Court of Session decision in the case of Gladman Developments Ltd. It was suggested that, while this judgement addressed a long-running debate over exactly if, how and when the concept of ‘tilted balance’ is applied, the ‘tilted balance’ is not and should not be a feature to be used to override normal planning judgement based on the primacy of the development plan and other material considerations.
Primacy of sustainable development: It was reported that the proposed removal of ‘the presumption’ has been characterised by some as a removal of the presumption in favour of sustainable development. However, many of those who supported the proposal disagreed with this interpretation and suggested that the removal of ‘the presumption’ will not prejudice the approval of proposals that fit the definition of sustainable development.
One suggestion was that the ongoing commitment to sustainable development could be more clearly stated within the policy revisions.
Opposition to the proposals
Clarity of policy: The most common view among respondents opposing the proposals was that ‘the presumption’ supports the plan-led system and the achievement of sustainable development, and that it will continue to do so in the future, irrespective of the recent Court of Session judgement in the case of Gladman Developments Ltd. It was argued that ‘the presumption’ does not override normal planning judgement based on the development plan and other material considerations, and that the Court of Session judgement will not cause it to do.
The proposed changes were argued to not represent a clarification of the intended approach but rather a wholesale deletion of a significant cornerstone of the planning system in Scotland, and to be neither a reasonable nor a proportionate approach to addressing perceived transparency issues. This perspective was sometimes connected to a suggestion that any major policy changes must be reserved for NPF4 so that they can be considered and consulted on appropriately.
The sustainability principle: The concept of sustainable development was seen as not only a key feature of the planning system but is also a keystone of wider economic and environmental policy in Scotland, and it was considered fitting that a presumption in its favour is a key feature of the planning system. There was a view that the current proposals send mixed messages by proposing to remove a provision which helps underpin the delivery of sustainable development through the discretionary system.
Any implication that ‘the presumption’ has been used to bring forward ‘bad’ development was challenged. In terms of what ‘the presumption’ brings, it was said to support the delivery of new development, particularly new housing, in sustainable locations where there is both an established need and demand that is not being met within a local authority area. There was a view that ‘the presumption’ is there necessarily to deal with a failure to provide sufficient housing land.
Relationship to a plan-led approach: A number of respondents questioned any suggestion that ‘the presumption’ creates the potential for conflict with a plan-led approach. It was suggested that ‘the presumption’ does not in fact undermine the primacy of the development plan but ensures that development plans have the required flexibility to respond to sustainable development opportunities as they arise. Undermining the principle of a discretionary system was seen as risking binding developers and planning authorities to outdated Local Development Plans (LDPs) which no longer reflect needs and aspirations on the ground.
Timing of development plans and impact on housing supply: On the theme of the currency of LDPs, and also with reference to the potential impact of the COVID-19 restrictions, some respondents suggested that this means it is even more essential to allow flexibility in the system so that sustainable development can continue. It was also reported that a significant number of the LDPs that are more than 5 years old are ‘out of date’ and that this would have been the case irrespective of any COVID-19 delay.
Overall, it was thought that the removal of ‘the presumption’ before addressing other problems with the planning system would exacerbate COVID-19 related disruption to housing supply.
Proposed changes to paragraph 123
Paragraph 123 of the SPP refers to the 5 year effective housing land supply and broadly describes the type of sites that could form part of it. The consultation paper set out that the Scottish Ministers are minded to amend paragraph 123 and the glossary to provide more flexibility within the description of the effective land supply at this time.
Question 2: What is your view on the proposed changes set out and our aim of clarifying the definition of the 5 year effective housing land supply to reflect the currently exceptional market circumstances?
To a very great extent, those who had agreed with the removal of ‘the presumption’ (at Question 1) also supported the proposal to amend paragraph 23 and the glossary. Equally, those who had objected to the removal of ‘the presumption’ very much tended to disagree with the proposals covered at Question 2.
Support for the proposals
Clarity around 5 year housing land supply: A number of respondents commented that the existing wording of SPP has led to uncertainty and is open to different interpretations. Clarity was seen as key to avoiding the interpretation of ‘effective land supply’ leading to disputes about programming assumptions.
In terms of sources of potential confusion, it was reported that the way ‘5 year effective housing land supply’ has often been used conflates the two separate matters of available land and the rate or programming of its build. It was suggested that any conflation of these issues provides developers with an opportunity to bring forward sites previously rejected when strategic planning decisions were made as part of the process of agreeing an LDP.
Exceptional market circumstances and COVID-19: A number of respondents commented on the consultation paper’s reference to exceptional market circumstances that are expected to continue for some time. However, some respondents who supported the proposed changes suggested that that the proposed amendments should not be restricted to being a response to dealing with COVID-19 but should be taken forward into NPF4.
Opposition to the proposals
Support for the aim of clarifying the definition: Whilst noting their overall opposition to the proposals as set out, a number of respondents commented that they supported the aim of clarifying the definition of the 5 year effective housing land supply to reflect current market circumstances.
Integrity of Housing Land Audits: It was reported that most Housing Land Audits are agreed with Homes for Scotland and that this is usually done without dispute. They were described as a solid basis for planning that is trusted by all parties. However, respondents also raised a number of issues or concerns about how the approach works currently, including that there is already a tendency for Housing Land Audits to be quite optimistically programmed.
Programming assumptions: There was a concern that the impact of the proposed changes on the outcome of planning decisions could be significant. In particular, it was suggested that while the 5 year supply of effective housing land would appear to increase on paper, there would be little chance that the increase would translate into new homes within that 5 year period.
Exceptional market circumstances: It was reported that the housing market appears very strong at present and that seeing the COVID-19 emergency as a justification for the proposed changes is out of line with the Programme for Government messaging on using this time to accelerate positive change. There was also a view that the pandemic is not the core matter holding back the delivery of housing and that any changes should be focused on ensuring that sites allocated are delivering, and on mechanisms to allow shortfall in delivery to be addressed.
Proposed changes to paragraph 125
Paragraph 125 of the SPP states that where a shortfall in the 5 year effective housing land supply emerges, development plan policies for the supply of housing land will not be considered up-to-date and paragraphs 32-35 will be relevant. The Scottish Ministers propose to revise paragraph 125 to provide a clearer approach for decision-makers in establishing the extent of the 5 year effective housing land supply and taking this into account in decision making.
Question 3: What is your view on the proposed changes to paragraph 125, including (a) the proposed calculation to establish the scale of the 5 year effective land supply in relation to alternatives and (b) the proposed approach to assessing proposals where a shortfall emerges?
There was again a very clear correlation between respondents’ perspectives at Questions 1 and 2 and their views on the proposed changes to paragraph 125.
Support for the proposals
(a) The proposed calculation to establish the scale of the 5 year effective land supply in relation to alternatives: It was reported that the lack of a recognised or definitive methodology for calculating the 5 year effective housing land supply has given rise to repeated disputes between opposing parties in the housing and planning sectors. Removing the scope for the variety and types of calculation that are currently being adopted was seen as a desirable outcome under all circumstances and not only in current conditions. There was also a call for the issue of methodology to be settled once and for all, including to allow resources to be deployed more constructively.
General comments on the proposed calculation to establish the scale of the 5 year effective land supply in relation to alternatives included that it is clear and appropriate. It was also described as being the most straightforward and robust method of calculating a 5 year effective land supply and it was noted that the proposed approach is largely in line with the calculation included within the Draft Housing Delivery Advice and the Planning Performance Framework.
(b) The proposed approach to assessing proposals where a shortfall emerges: There was support for a shortfall in supply being considered as a material consideration, although one perspective was that it should be considered as one material consideration amongst several others.
However, while the proposed approach was welcomed it was suggested that it could be strengthened by referring to the need for proposals to fully demonstrate they are effective and capable of delivering completions within a 5 year period to address any identified shortfall. Further, it was suggested that speculative proposal sites brought forward to address shortfalls should be required to demonstrate that they have clear potential for delivery within the timeframe through provision of an estimated annualised programme.
It was also suggested that there needs to be a mechanism that allows local authorities to bring forward the ‘next best option’ for when a housing land shortfall arises.
Opposition to the proposals
One note of agreement between some of those supporting and some of those opposing the proposals was that a clearer approach for decision-makers in establishing the extent of the 5 year effective housing land supply would be beneficial for all. However, it was also suggested that the methodology proposed favours the small minority of authorities that seek to write-off shortfalls in housing delivery on a year-by-year basis, rather than working to recover those shortfalls within the lifespan of the plan.
It was reported that the problem now is one of supply, not demand and that the homes that were not completed in 2020/2021, as a result of the site shut down and subsequent need for greater physical distances for those working on site, are still needed.
Objections to the proposed calculation generally centred around a concern that it would overlook the shortfalls that commonly occur as a plan period progresses. Using the residual approach to calculate the 5 year effective housing land supply was described as essential to establishing whether the housing land requirement will be met, and there was an associated concern that the language used in the consultation is designed to downplay the significance of a shortfall. Going forward, it was suggested that any undersupply of homes over the previous plan period must be recognised as part of any approach to establishing the land supply needed.
Impacts of the proposed amendments
The consultation paper stated 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.
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. 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.
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.
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 and housing-related infrastructure supported by developer’s contributions.
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 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.
Some respondents 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.
Requirement for fuller impact assessments
The consultation paper explained 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). 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.
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.
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 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.
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 proposals should not be regarded as a procedural and technical exercise not requiring such assessment and that they are major or significant changes that will have a negative impact on supply of new homes.
It was suggested that the proposed changes will have an impact on 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. 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.
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