Approach to Determining Shortfall in Five-Year Effective Housing Land Supply in Planning Appeals

Introduction

The case of Gladman Developments Ltd v The Scottish Ministers ([2023] CSIH 21) revolves around an appeal by Gladman Developments Ltd against the decision of the Scottish Ministers to refuse planning permission for a substantial residential development in Strathblane. The core issue under scrutiny was whether the Ministers could make an assumptive determination regarding the shortfall in the five-year effective housing land supply without establishing the appropriate methodology for such calculations, even when the assumption appeared favorable to the appellants.

Summary of the Judgment

The Scottish Court of Session, in its judgment delivered by Lord Boyd of Duncansby, dismissed the appeal lodged by Gladman Developments Ltd. The court upheld the decision of the Scottish Ministers to refuse planning permission on the grounds that the adverse impacts of the proposed development significantly outweighed its benefits. Notably, the Ministers had assumed a shortfall in the five-year effective housing land supply, applying the appellants' preferred residual methodology to reach a shortfall figure of 1,621 units. The court found that the Ministers acted within their legal bounds, and their approach to assessing the shortfall did not constitute a material error.

Analysis

Precedents Cited

The judgment extensively referenced previous cases and statutory provisions that shaped the court’s reasoning:

Gladman Developments Limited v The Scottish Ministers [2019] CSIH 34: Established that the reporter erred in law by not determining the appropriate methodology for calculating the five-year land supply.
Hallam Land Management v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808: Emphasized the necessity for decision-makers to understand and determine the extent of a shortfall to appropriately weigh it against policy factors.
South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953: Highlighted that decisions must be adequately reasoned to avoid prejudice against appellants.
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759: Clarified that courts focus on the legality of the decision-making process rather than the merits of the decision itself.

These precedents collectively underscored the importance of methodological rigor and adequate reasoning in planning decisions, ensuring that assumptions made by decision-makers are legally sound and transparent.

Legal Reasoning

The court meticulously dissected the legal framework governing planning permissions, particularly focusing on the Town and Country Planning (Scotland) Act 1997 and the Scottish Planning Policy. Central to the decision was the assessment of the five-year effective housing land supply and whether the Ministers appropriately determined or assumed this shortfall.

Lord Boyd of Duncansby articulated that while the Ministers had assumed a shortfall, this was permissible within legal bounds provided it was done transparently and based on reasonable grounds. The court noted that the Ministers had considered various methodologies, including the appellants' preferred residual method, and had chosen an approach that was consistent with previous judgments and legislative intent.

The Ministers' reasoning was deemed adequate as it aligned with established legal principles, demonstrated a balanced consideration of policy factors, and maintained consistency with the Strategic Development Plan (SDP) and Local Development Plan (LDP). The court found no material error in the Ministers' approach to balancing the shortfall against policy considerations, thus affirming the decision to refuse planning permission.

Impact

This judgment reinforces the precedent that planning authorities possess the discretion to make reasoned assumptions regarding housing land supply shortfalls, provided such assumptions are grounded in reasonable methodology and are transparently communicated. Key implications include:

Methodological Flexibility: Planning authorities are affirmed in their ability to choose appropriate methodologies for calculating land supply shortfalls, balancing accuracy with practicality.
Transparency and Reasoning: The necessity for clear and adequate reasoning in decisions ensures that assumptions and methodologies are scrutinized and justified, promoting fairness in the planning process.
Policy Alignment: Developments must align with regional and local strategic plans, and authorities must effectively balance development benefits against potential adverse impacts as per established policies.

Future cases will likely reference this judgment when addressing the adequacy of planning authorities’ methodologies and their adherence to legal standards in decision-making processes.

Complex Concepts Simplified

Five-Year Effective Housing Land Supply: This refers to the assessment of available land for housing development that is expected to meet housing demand over a five-year period.
Residual Methodology: A calculation approach that adjusts housing requirements based on previous shortfalls, ensuring the current targets reflect past development delays.
Presumption in Favor of Sustainable Development (SPP): A policy stance that generally favors housing developments contributing to sustainability unless significant adverse impacts outweigh these benefits.
Strategic Development Plan (SDP) and Local Development Plan (LDP): Regional and local planning frameworks that outline objectives and policies for land use and development within their jurisdictions.
Material Considerations: Factors that must be considered by planning authorities when deciding on planning permission, as stipulated by law.

Understanding these concepts is crucial for comprehending the dynamics of planning appeals and the judicial scrutiny applied to administrative decisions.

Conclusion

The judgment in Gladman Developments Ltd v The Scottish Ministers underscores the judiciary's role in ensuring that planning authorities adhere to legal standards and methodologies in decision-making processes. By upholding the Ministers' assumption of a housing land supply shortfall, the court affirmed the legitimacy of making reasoned assumptions within the framework of existing policies and precedents. This decision highlights the delicate balance between facilitating development to meet housing needs and safeguarding sustainable development principles. Overall, the judgment reinforces the importance of transparency, adequate reasoning, and methodological rigor in planning decisions, thereby contributing significantly to the body of administrative law in Scotland.