The Court of Session has upheld the use of the “tilted balance” in cases where there is a shortfall in the housing land supply, in a case set to have significant ramifications for planning in Scotland.
Gladman Developments – one of the largest strategic land promoters in the UK – successfully appealed against an earlier dismissal of its planning appeal for a residential development at Carsemeadow, Quarriers Village, Kilmacolm, Inverclyde.
In 2014, Scottish planning policy (SPP) introduced a presumption in favour of development which contributes towards sustainable development and is a significant consideration when a local authority has a shortfall in its five-year effective housing land supply. SPP is similar to the National Planning Policy Framework (NPPF) in England, where it is recognised that a shortage in housing land results in a tilted balance in favour of the grant of planning permission.
There had been increasing debate around whether such a tilted balance applies in similar cases in Scotland.
Lord Carloway, giving the court’s judgment, overturned the earlier ruling, quashed the planning decision of the Scottish Ministers and remitted the case back to them for reconsideration.
He said that a housing development which will remedy, to some extent, a housing shortage is something which almost inevitably “contributes to sustainable development”, which is what is required by SPP.
He continued: “Whether it is, in overall terms, a sustainable development is another question. That is one for planning judgement, but it involves the use of the tilted balance. The correct approach, in practical terms, where there is a housing shortage, is to regard that shortage as ‘a significant material consideration’. It is not determinative.”
In this case, he said that the parties were not in dispute that, if a tilted balance applied, the lower court did not apply it and the appeal should succeed.
Craig Whelton, partner in Burges Salmon’s Scottish planning and compulsory purchase team, who acted for Gladman, said: “The court’s judgment, and quashing of the appeal, should put planning decision-makers on notice as to the weight to be attached to SPP, and the proper application of the presumption and the tilted balance.”
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