Scottish Ministers’ Dairy Decision Lactose Material Planning Considerations

On 23 January 2019 the Court of Session quashed the Scottish Ministers' decision to refuse Graham's Dairy appeal for residential development near Bridge of Allan.

The decision provides useful guidance to developers and decision makers as to how Scottish Planning Policy should be applied where there is a shortage in the five year effective housing land supply. The Court was critical of the Scottish Government’s handling of the appeal and failure to keep its reasoning up to date, describing it as a “somewhat careless approach to decision making”.

Background

In September 2014, Graham's Dairy submitted a planning application to Stirling Council for 600 houses and ancillary development near Bridge of Allan. The application was refused on 23 March 2016.

Graham's Dairy appealed and the Scottish Ministers appointed a Reporter to consider the case and produce a report for Ministers, who would ultimately determine the appeal.

The Reporter provided his report to Ministers in June 2017 recommending that the appeal should be refused.  Adopting the Reporter’s recommendation, the Scottish Ministers refused the planning appeal on 18 June 2018.  Graham's Dairy appealed that decision to the Court of Session.

A key issue in the appeal was the shortfall in the effective housing land supply and how this was to be calculated and addressed.  In a repeat of an argument that has been considered in numerous appeals in Scotland in recent years, it was Graham Dairy’s position that there was a significant shortfall in the housing land supply, and that this would not be fully addressed by the new Local Development Plan (LDP).  The Council’s position was that, whilst there was a shortfall, the new LDP would address the issue.

The Reporter accepted the Council’s arguments, and concluded that granting consent would be prejudicial to the emerging LDP – on the basis the shortfall would be addressed by the new LDP.

However, in the 12 month period between the Reporter writing his report and Scottish Ministers refusing the planning appeal, Stirling Council approved the new LDP.  Contrary to the Reporter’s assumption that the new LDP would fully address the shortfall in housing land supply, the Stirling LDP still contained a shortfall of at least 169 units.

Court of Session Decision

There were two reasons why the Court of Session quashed the Scottish Ministers’ decision to refuse the planning appeal:

• the Scottish Ministers had failed to take into account a material consideration, being that the LDP process was nearly complete and had produced a housing land supply shortage with no solution as to how this shortage may be resolved; and
• the Scottish Ministers took into account an irrelevant consideration, which was that the Reporter’s report had stated the LDP process would produce a resolution to the housing shortage in Stirling, which was not correct by the time of the Scottish Ministers’ decision.

The Court’s decision reiterates the recognised principle of planning law, that policy and other considerations must be taken into account at the point of determination of an application or appeal, not just when an “in principle” decision is made. This is relevant to both planning applications and appeals, especially those cases involving Section 75 agreements, where there can often be a significant delay between the original assessment of the application and issue of the permission.

The Court also provided useful guidance on how the presumption in SPP should be applied where a shortfall in the housing land supply was identified.

Scottish Planning Policy (SPP) contains a presumption in favour of development that contributes towards sustainable development. That presumption is a material consideration in all cases, and a significant material consideration where there is a shortfall in the effective housing land supply.

The presumption is a significant material consideration when deciding planning applications, and must be “significantly and demonstrably” outweighed by other considerations before a development should be refused planning permission.

The Court referred to this as the “tilted balance” (a term that has been used by the English Courts in similar decisions), where a shortfall in the housing land supply tilts the balance in favour of the development.

The Court was critical at the lack of detailed reasoning in the Scottish Ministers decision setting out how the presumption in favour of development and the “tilted balance” had been addressed. In particular, Ministers had failed in their decision to show how they had treated the shortfall as a significant material consideration, or how impacts on the greenbelt could be said to “significantly and demonstrably” outweigh the benefits of the proposal.

What’s next?

The Scottish Ministers will now re-determine the planning appeal. It is likely that the Scottish Ministers will ask parties to provide written submissions addressing the change in circumstances since the issue of the Reporter’s report and the original decision.

Whilst their original decision was ruled unlawful, there is no guarantee that the Scottish Ministers will reach a different view on the planning merits of the proposal, and planning permission could still be refused.

More generally, planning authorities will need to ensure their assessment of applications gives appropriate consideration to SPP. The purpose of the SPP presumption is to secure the delivery of more homes in areas where the LDP is failing to do so.  However, there has been a tendency for planning authorities to give limited weight to SPP, and to continue to refuse applications on the basis of out of date policies.  The Court of Session decision emphasises the importance of not only applying the “titled balance”, but being able to demonstrate this has been done.

It is said that it is not possible to tip a cow. However, thanks to Graham's Dairy we know that it is possible to tip the planning balance in favour of sustainable development.