Transitional arrangements for National Planning Framework 4

The Planning Minister Tom Arthur MSP and Chief Planner Dr Fiona Simpson have published advice on the transitional arrangements for National Planning Framework 4 (NPF4) ahead of its adoption next Monday (13 February 2023).

The intention of the advice is to “support consistency in decision making ahead of new style LDPs being in place”.  It advises on the interaction between NPF4 and Local Development Plans and also gives specific advice on how certain policies should be applied.

The full letter can be found here. The following is a summary of key points to note, with some additional comments, particularly in relation to Policy 16 – Quality Homes.

The Development Plan

• LDPs that have already been adopted will continue to be part of the development plan and “for avoidance of doubt” existing LDP land allocations will be maintained.
• Where proposed LDPs have been prepared prior to the adoption of NPF4 (see our earlier article on this here), it may be possible to reconcile certain identified inconsistences with NPF4 through the examination process. However, the advice cautions that the scope of the examination of proposed LDPs should be limited to issues that have been raised in representations to ensure that the process remains proportionate and fair. The advice does however then go on to explain that, as a matter of law, where there is inconsistency between an LDP and NPF4, whichever of them is later will prevail. In that respect, while it may be undesirable not to be able to deal fully with inconsistencies as part of the examination process, as a matter of law, there will at least be certainty about how any inconsistency will be resolved after the proposed LDP has been adopted.
• Supplementary guidance associated with LDPs in force before 12 February 2023 will continue to be in force and be part of the development plan.  Local authorities will also be able to continue to prepare and adopt “statutory” supplementary guidance associated with local development plans until 31 March 2025.
• Every planning authority in Scotland is expected to have a new style plan in place within around five years of the new development plan regulations coming into force, which should happen this spring.
• There is no legal requirement for LDPs to be directly “compatible” with NPF4, but planning authorities do have a legal duty to take NPF4 into account when preparing new LDPs.

Applying NPF4 Policy

The advice explains in relatively general terms the importance of NPF4 being read and applied as a whole and also that conflict between policies is to be expected. Ultimately, factors for and against developments are to be weighed up in the exercise of planning judgment.

However, the letter does set out specific advice on certain NPF4 policies.

Policy 1 – Tackling the climate and nature crisis

• The advice confirms that this policy prioritises the climate and nature crisis “in all decisions”.
• However, it will be for the decision-maker to determine whether the significant weight to be applied tips the balance in favour of or against a proposal on the basis of its positive or negative contribution to the climate and nature crisis.  In that respect, it does still leave the question of what to do with that “significant weight” for the judgment of the decision-maker.

Policy 2 – Climate mitigation adaptation

• The advice recognises that there is no single accepted methodology for calculating and/or minimising emissions.  It simply states that the emphasis is on reducing emissions as far as possible, rather than eliminating all emissions.
• It confirms that “at this stage” quantitative assessments are not expected for all applications.  However, it also confirms that there are no defined thresholds that require different levels of information.  Some types of development proposals that may “generate significant emissions”, such as some national or major developments, may reasonably require quantitative information to be provided with the application.
• The advice does helpfully reference the Scottish Government’s publication “Carbon Management Guidance for Projects and Programmes”, which includes information on methodologies which may be of assistance to applicants and planning authorities.  However, it stops short of directing that it should apply.
• There still remains a major question mark over what information should be provided in relation to any particular development and how that information should be assessed.

Policy 3 – Biodiversity

• Similarly, the advice recognises that there is no single accepted methodology for calculating and/or measuring biodiversity enhancement.  It explains that research has been commissioned to explore options for developing a biodiversity metric or other tool, specifically for use in Scotland.  Again, it simply states that it is for the decision maker to take into account the policies in NPF4 as a whole when considering whether there is an opportunity for the development to contribute to the enhancement of biodiversity, or not.

Policy 16 – Quality Homes

The advice in relation to this policy needs careful consideration and must be considered in its proper context.

• Helpfully, it reminds us that new style LDPs must include targets for meeting the housing needs of people living in the area, referred to in NPF4 as the ’Local Housing Land Requirement’ (“LHLR”).  That LHLR will be informed by the Evidence Report and Gate Check process as part of the LDP plan making process.  The advice confirms (again) that it is expected that the LHLR will exceed the Minimum All Tenure Housing Land Requirement (“MATHLR”) set out in NPF4.
• This means that until such time as a new style LDP is adopted, the existing LDP policy position on the housing supply target and housing land requirement for any particular local authority area continues as the development plan policy position.
• As noted, existing LDPs that are already adopted continue to be part of the development plan and existing LDP land allocations will be maintained.  Existing policy positions on housing supply targets and housing land requirements will continue as the adopted development plan policy position until such time as they are replaced by a new LDP plan making process.  It is not the case that the existing policy position automatically falls or is replaced by the MATHLR.
• If a new proposed LDP reaches examination without sufficient sites identified to meet the LHLR, a planning authority can be required to prepare another proposed LDP.
• The Government will produce new guidance on housing land audits this year in collaboration with key stakeholders.  The new guidance will seek to ensure a consistent approach is adopted in the preparation of new housing land audits.
• “Policy 16 is applicable to decision-making when NPF4 becomes part of the statutory development plan”.  That is undoubtedly correct.  However, it is worth noting that Policy 16 does not include the MATHLR.  It forms part of the NPF4 policy that will inform the preparation of new LDPs, but it is not part of Policy 16 itself that should or can be applied in development management decision making.
• The advice expressly states with regard to Policy 16 that SPP (2014) is superseded and does not form part of Scottish Government planning policies, including: “The requirement to maintain at least a five year supply of effective housing land at all times, shortfalls in supply indicating LDP policies are not up-to-date, the “presumption in favour of development contributes to stable development” and the concept commonly known as the “tilted balance””.  That is all undoubtedly correct.  However, it is important that the purpose and effect of those particular policies and concepts are put in their proper context.  As the Lord President stated in the recent “Hens Nest Road” decision, the “exceptional release” development plan policies that concern the requirement to maintain at least a five year supply of effective housing land at all times are simply a means to an end.  The “end is the fulfilment of the overall purpose of a development plan, which is to ensure that the housing need in the area is met.”  That will not change on adoption of NPF4.

Policy 23 – Health and Safety

• The advice addresses concerns about references within NPF4 to suicide risk and draws attention to publications produced by the Scottish Governments together with COSLA and by the Welsh Government.

Policy 27 (d) – Drive-thru developments

• The advice references the specific policy provision which states that “drive-thru developments will only be supported where they are specifically supported in the LDP”.  This led to a suggestion that NPF4 was effectively going to ban drive-thrus.  Helpfully, the advice confirms that is not the case.
• Rather, the intention of the policy is to ensure that this type of development is considered as an integral part of the wider development plan, and is not, “as has been erroneously reported”, a moratorium or ban on such developments.
• When considering whether there is specific support for a drive-thru in a local development plan, the planning authorities may regard wider uses that are compatible with the drive-thru function to be included, for example, Class 1 shops or Class 3 food and drink.  There will be further guidance on drive-thru’s and the relationship to Policy 27(d) in the forthcoming local development plan guidance.

Further planning guidance and advice

• Finally, the advice confirms the commitment in the NPF4 delivery programme for a new suite of guidance and advice to support activity to deliver the policy intent of NPF4.  That will be done alongside careful monitoring of the implementation of policies.

Next stop,  NPF4’s publication and adoption on Monday, 13 February 2023.