Town and country planning – Planning permission – Tilted balance – Scottish planning policy – Appellant developer challenging decision of respondents’ reporter to dismiss appeal against refusal of planning permission for residential development – Whether “tilted balance” in favour of development applicable to non-sustainable development – Whether reporter properly assessing extent of shortfall in supply of effective housing – Whether reporter giving adequate reasons for decision – Appeal allowed.
In June 2018, the appellant developer applied for planning permission for a residential development at Carsemeadow, Quarriers Village, Kilmacolm, a site within a strategic development plan area. The appellant argued that the development would contribute to sustainable development in terms of Scottish Planning Policy (2014), which introduced a presumption in favour of development which contributed towards sustainable development and was a significant consideration when a local authority had a shortfall in its five-year effective housing land supply: SPP was similar to the National Planning Policy Framework in England, which recognised that a shortage in housing land resulted in a “tilted balance” in favour of the grant of planning permission.
Section 25(1) of the Town and Country Planning (Scotland) Act 1997 provided that, in relation to a development such as the present, the decision on planning permission was to be made in accordance with the development plan unless material considerations indicated otherwise. The application was refused on the grounds that it was contrary to various policies within the development plan under reference to the report which said that there was no need for additional housing land at that time.
The respondents’ reporter dismissed the appellant’s appeal against that decision concluding that the proposed development did not accord overall with the relevant provisions of the development plan; and that there were no material considerations which would still justify granting planning permission.
The appellant appealed under section 239 of the 1997 Act. The issues for the court were: (i) whether the tilted balance in favour of development applied where the proposed development was not sustainable development; (ii) whether the reporter properly assessed the extent of any shortfall in the supply of effective housing; and (iii) whether the reporter had given adequate reasons for her decision.
Held: The appeal was allowed.
(1) There had been no failure to state adequate reasons on the part of the reporter. She had set out her reasoning clearly and in detail. The informed reader would have no difficulty in understanding what the reasons for the decision were and what factors were, or were not, taken into account in reaching that decision. The question was whether the reasoning was sound.
Once a housing land shortage was established, paragraphs 32 to 35 of SPP became relevant. Paragraph 33 provided that the effect of that was that the presumption in favour of development became a significant material consideration. The paragraph required that the development contributed to sustainability. That was not a barrier to the application of the tilted balance which applied in much the same way as under the similar but not identical English provisions: Hopkins Homes v Secretary of State for Communities and Local Government [2017] UKSC 37; [2017] EGLR 27 applied.
(2) A housing development which would remedy, to some extent, a housing shortage was something which almost inevitably contributed to sustainable development, which was what paragraph 33 required, in one degree or another. It would do so also in terms of the economic benefits of construction and in other ways. Whether it was, in overall terms, a sustainable development was another question which was for planning judgment, but it involved the use of the tilted balance. The correct approach, in practical terms, where there was a housing shortage, was to regard that shortage as a significant material consideration but it was not determinative.
Paragraph 33 provided that, in such a situation, where the tilted balance was thus in play, the decision-maker had to take into account any adverse impacts. Those would include factors such as greenbelt, environmental and transport policies as set out in the otherwise “out of date” strategic development plan or local development plan. Each factor would play a part in the determination of whether, overall, the development was to be regarded as sustainable. The existence of one or more adverse findings in relation to the thirteen guiding principles to sustainability in terms of SPP did not prevent the operation of the tilted balance, but it might result in the balance tilting back to a refusal.
(3) The parties were not in dispute that, if a tilted balance applied, the reporter did not apply it and the appeal should succeed. The reporter understood that, since there was a housing shortage, the development plan policies relative to housing could not be considered to be up to date and that therefore the presumption in favour of sustainable development was a significant material consideration. The difficulty was in discovering how, in practical terms, that presumption was taken into account. Rather, the exercise undertaken by the reporter was the customary one of determining whether there were exceptional reasons, such as the economic benefits, that would justify approving a development that did not constitute sustainable development.
The starting point ought to have been that there was a presumption in favour of the development because, inter alia, it provided a solution, at least in part, to the housing shortage. Thereafter, the question was whether the adverse impacts, notably the other policies in the development plan, significantly and demonstrably outweighed the benefits of the development in terms of the housing shortage and the economic gain. It followed that the appeal had to be allowed and the decision of the reporter quashed.
(4) The question of the manner in which the housing shortage should be calculated, would be of some importance in any reconsideration of the appeal to the respondents. Although there was no need for the reporter to calculate the precise level of any shortage, it was necessary to make a broad assessment of the seriousness of the shortage to enable the reporter to give it due weight in the tilted balancing exercise: Hallam Land Management v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808; [2018] PLSCS 140 followed.
James Findlay QC and Alasdair Burnet (instructed by Burges Salmon, of Edinburgh) appeared for the appellant, James Mure QC and Paul Reid (instructed by the Scottish Government Legal Directorate) appeared for the respondents.
Eileen O’Grady, barrister
Click here to read a transcript of Gladman Developments Ltd v Scottish Ministers
