NPF4 will be four months old next week and the growing pains for the housebuilding sector are very real.

Growing into a new planning system was always going to present challenges.  However, some of the challenges that have emerged over the last few weeks were entirely avoidable.

You can read about the teething problems that developed into full-blown toothache in our earlier articles here and also here.

The Scottish Ministers called in the Mossend Appeal for their determination (see Full-blown toothache article for full details) so they can set out how they consider NPF4 Policy 16 should be applied.  In particular, (i) can it be applied in development management decision making before “new” NPF4 compliant local development plans are adopted, (ii) if so, to what extent, and (iii) does its application necessarily exclude the application of exceptional release policies in “old” local development plans?

The appellant in the Mossend Appeal, and the appellants in the various appeals that have been sisted pending the Scottish Ministers’ decision in Mossend, have argued that NPF4 Policy 16 cannot be applied in full until “new” NPF4 compliant local development plans are adopted and “old” exceptional release policies continue to apply. Those arguments are supported by legal opinion.

The impact of the decision to call in the Mossend Appeal and sist the other appeals is being felt across Scotland.  There is evidence of planning authorities putting their foot on the ball of major housing applications pending the outcome of the Mossed Appeal.  That is very concerning.  In all likelihood, regardless of the outcome, the Mossend Appeal will end up in court.  There is therefore a real risk of significant delay to the determination of planning applications for thousands of homes across Scotland.

Ironically, West Lothian Council (the planning authority in the Mossend and sisted appeals) is not delaying decision making in other applications pending the Scottish Ministers’ decision.  They recently refused a major housing application following planning officer advice that the legal opinions (three King’s Counsel) were wrong and there was no reason to wait for guidance from the Scottish Ministers on how to apply Policy 16.

So where does this leave us? In a strange limbo, where applicants and planning authorities can still progress planning applications, but under the spectre of what Ministers might say in Mossend, when they might say it, and what the courts will ultimately say in any subsequent legal challenge.

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