While there are some positive noises being made in the development world (for example the removal of rates relief for empty listed buildings – albeit many such buildings remain unviable to redevelop without government support/investment) the recent Court of Session decision in Miller Homes Ltd v The Scottish Ministers [2024] CSIH 11 XA41/23, commonly referred to as “Mossend”, is seen by many to further prevent housing on unallocated sites from coming forward and flies in the face of the government’s aspirations to build more homes.

The Mossend decision

Following a refusal to grant planning permission on appeal for 250 homes on unallocated farmland in Mossend, West Calder, on 11 May 2023, the decision was appealed to the Court of Session and on 3 May 2024 the appeal was refused with the earlier decisions upheld. The main issue at play related to the incompatibility between policy 16(f) of the National Planning Framework and the local planning authority’s local development plan.

Section 25(1) of the Town and Country Planning (Scotland) Act 1997 provides that a planning application is to be determined in accordance with the development plan, unless material considerations indicate otherwise. Section 24(3) of the 1997 Act states: “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.” The pertinent policy of the LDP was HOU 2, which provided that “where additional [ie not allocated] sites are needed to maintain a five-year effective housing land supply, greenfield sites will be supported”, subject to certain criteria which the appellant argued were all met.

Policy 16(f) of the NPF states: “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’s spatial strategy and other relevant policies including local living and 20-minute neighbourhoods;… and… delivery of sites is happening earlier than identified in the deliverable housing land pipeline…”

It was this conflict that went to the heart of the decision. The appellant’s core argument was not that policy 16(f) was incompatible with HOU 2 (that was self-evident) but that instead that the policy was “inoperable at this time” and HOU 2 would remain applicable until a new-style NPF4 LDP was implemented. Without following this approach, there would be an “inexplicable inconsistency” between old-style LDPs adopted before NPF4 and old-style LDPs adopted after its implementation; housing on unallocated land would be allowed under the former but not the latter.

The Scottish Ministers played it with a straight bat and relied on the incompatibility argument as outlined above. They further argued that just because support for the development could not be obtained from policy 16(f) did not mean that the policy was incapable of rational application; it was capable of operating to permit release of unallocated housing in the context of old-style LDPs and there were “other means by which the gap could be plugged”. Here, the Scottish Ministers made reference to the Aberdeen City Council approach using a delivery programme to prove the case of the “deliverable housing land pipeline”.

In dismissing the appeal, the Court of Session found that: “There is nothing in statute, policy or guidance to suggest that the operation of policy 16… is postponed to a point where ‘new-style’ LDPs are in place.” It added that the delivery programme in NPF 4 establishes a deliverable housing land pipeline.

What this means

While the judgment is a black-and-white one with respect to the application of policy 16(f), some hope is left by the Court of Session. Reference is made to the Aberdeen case being one that would stand up to scrutiny for old-style LDPs with an accompanying delivery programme. Further, obiter, Lord Boyd reminds us of the difference between development planning and development control and the test in section 25(1) of the 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”.

Does this open the door for future successful appeals?

It may not be the end of the road therefore for housing on unallocated sites in the “old-LDP world”, but certainly a further obstacle in the way of delivering much-needed homes. It will be interesting to keep an eye on the current appeal decisions and applications being held up by Mossend and how those are treated by the decision makers, assuming they do not get withdrawn in the light of the judgment.

The article first appeared in Estates Gazette egi.co.uk on July 2, 2024.