Hillside and NPF4: An Eventful Week for Planning in Scotland

Hillside

The Supreme Court has recently issued its eagerly anticipated judgment in the Hillside case, which considered the implications of overlapping planning permissions. The Hillside judgment is arguably one of the most significant planning judgments in many years and is of relevance to developers, planning consultants and planning officers dealing with overlapping planning permissions.

We have discussed some of the key issues arising from the judgment in a number of articles, which can be accessed at the following links:

Hillside Revisited- Supreme Court gives judgment on (in)compatibility of planning permissions

Hillside Revisited 2 - Conflicting planning permissions: Reconciling “physical impossibility” with “mere incompatibility”?

Hillside Revisited 3 Sage Advice Development pursuant to a planning permission does not need

Hillside Revisited 4: Physical differences must be material?

The Revised Draft NPF4

As if Hillside wasn’t enough, the Revised Draft National Planning Framework 4 (the “Revised NPF4”) was laid before the Scottish Parliament on World Town Planning Day, less than a week later. The Revised NPF4 can be accessed here.

The Scottish Parliament must now approve the Revised NPF4 before it can be adopted by the Scottish Ministers, which is anticipated to happen early in 2023. Once adopted, the Revised NPF4 will form part of the statutory development plan across the whole of Scotland. Some of the key points emerging from the Revised NPF4 are summarised below.

National Developments

No major changes have been made to the previously identified 18 National Developments in the November 2021 draft National Planning Framework 4 (the “Draft NPF4”), with changes being described as refinements. Suggestions from the consultation process that the National Developments should have a presumption in favour of planning permission was not taken on board due to the need to consider other applicable policies in making planning decisions.

A couple of the more significant changes arose out of the Habitats Regulations Appraisal (“HRA”). The HRA found that it was not possible to conclude that quay and handling facilities for ultra large container ships in Scapa Flow, and land reclamation for port expansion at Dundee Waterfront could be progressed without adversely affecting European sites. These elements have therefore not been included in the ‘Energy Innovation Development on the Islands’ and ‘Dundee Waterfront’ national developments, but there is an aspiration for them acknowledged elsewhere and there is still a potential for these elements to be progressed following further assessments.

National Planning Policy

The most substantial changes between the Draft NPF4 and the Revised NPF4 relate to the national planning policies. It is not possible to discuss all of the changes in this article but we have highlighted the following changes:

• A common issue raised in consultation responses was the lack of clarity arising from the use of “must” in some policies and “should”/“could” in others. This has been clarified by consistently using “will”, ”will only” and “will not” throughout the policies.
• To give greater prominence to the climate emergency, a new ‘overarching’ policy 1 is proposed which states that “significant weight will be given to the global climate and nature crises” when considering all development proposals.
• Additional definitions have been provided in the Revised NPF4 for some of the terms that were not clearly defined, such as “sustainable tourism”, “nature networks” and “nature-based solutions”.
• Policy support is retained for proposals which contribute to local or regional community wealth building but some clarity has been provided as to what that involves. Examples of community wealth building include local job creation, using local supply chains and supporting community led proposals.
• The policy relating to 20 minute neighbourhoods has been amended to make it more flexible and include reference to local living more broadly.
• The requirement for affordable housing has been strengthened, with policy now stating that proposals for market homes will only be supported where affordable provision is at least 25% of the total number of homes, although there are circumstances where other provision may be acceptable.
• The Revised NPF4 states that housing developments on land not allocated for housing in the local development plan (“LDP”) will only be supported in limited circumstances where various criteria are met. One such criterion is that delivery of other sites is happening earlier than anticipated.
• Significant changes have been made to the policy on energy which now states that development proposals for all forms of renewable, low-carbon and zero emissions technologies will be supported, although wind farms in National Parks and National Scenic Areas will not be supported. There are still requirements to assess the overall impacts but in doing so, significant weight will be placed on the contribution to renewable energy generation targets and greenhouse gas emissions reduction targets. Proposals will also need to maximise net economic impact, including local and community socio-economic benefits. Restrictions on development in areas of wild land have also been removed where the proposal will support meeting renewable energy targets and the protections for scheduled monuments have been softened to some extent.
• There is a new policy which provides that drive-through developments will only be supported where they are specifically supported in the LDP
• Clarification has been added to the policies dealing with allocating housing land in LDPs, to make it clear that housing land requirements in LDPs will be expected to exceed the minimum all-tenure housing land requirement (“MATHLR”) in the Revised NPF4. Changes have also been made to the MATHLRs included in the Draft NPF4 as a result of new Housing Need and Demand Assessments carried out locally. While most of the changes are relatively minor, a reduction in the City of Edinburgh MATHLR of 4,550 and an increase in the Midlothian MATHLR of 800 are likely to be of particular interest.

Comment

The Hillside judgment and the Revised NPF4 are important developments for anyone involved in planning in Scotland.

Hillside will be of particular importance to developers, planning consultants and planning authorities dealing with large schemes which have often seen variations to the development approved by way of standalone detailed applications over part of the development.

The Revised NPF4 will likely be seen as a positive for anyone involved in the renewables sector. For those involved in housing development, the importance of getting land allocated will only become greater as the Revised NPF4 will increase the challenges in obtaining planning permission for residential development on unallocated sites. Planning authorities have the unenviable task of getting their heads round the implications for live applications of the significant changes in the Revised NPF4.

Article co-authored by Emily McDonald, Trainee Solicitor at CMS.