Introduction

The case of MacTaggart and Mickel Homes Ltd and Others against Inverclyde Council and Another ([2020] ScotCS CSIH_44) serves as a pivotal reference in Scottish planning law, particularly concerning the methodological rigor required in Local Development Plans (LDPs). This appeal involved five housing developers challenging the adoption of the 2019 Inverclyde Local Development Plan by Inverclyde Council. The core dispute revolved around the adequacy and methodology used in determining the Housing Land Supply (HLS) and Housing Land Requirement (HLR) to meet the Strategic Development Plan (SDP) and Scottish Planning Policy (SPP) mandates.

Summary of the Judgment

The Scottish Court of Session's First Division, Inner House, delivered the judgment on July 22, 2020. The appellants, represented by Armstrong QC and Shepherd & Wedderburn LLP, contested the Examination Report's findings related to the LDP's Chapter on Housing Land Supply, Housing Supply Targets, and Housing Land Requirement.

The court identified several critical issues, notably the methodologies employed in calculating the effective five-year HLS and the application of the "generosity allowance." The Examination Report's failure to conclusively resolve these methodological disputes led the court to scrutinize whether the LDP complied with existing planning policies.

Ultimately, the court found that the Examination Report contained material errors, particularly in its failure to adequately address the appropriate methodology for calculating HLS and HLR. Consequently, the court allowed the appeal, quashing the flawed chapter of the LDP, thereby emphasizing the necessity for methodological precision in housing planning.

Analysis

Precedents Cited

The judgment extensively referenced previous cases to establish the standards expected in planning judgments:

• Gladman Developments v Scottish Ministers [2019] CSIH 34: Highlighted the necessity for appropriate methodology in calculating effective housing land supply.
• Persimmon Homes (North East) v Blyth Valley BC [2009] JPL 335: Emphasized that fundamental policy mistakes cannot be justified by planning judgment.
• Tesco Stores v Dundee City Council 2012 SC (UKSC) 278: Reinforced that LDPs cannot reinterpret Strategic Development Plans (SDPs).
• Eadie Cairns v Fife Council [2013] CSIH 109: Affirmed that flawed reasoning in Examination Reports can lead to challenges in adopting LDPs.

These precedents collectively underscore the judiciary's role in ensuring that local planning authorities adhere strictly to established methodologies and policies.

Legal Reasoning

The court's legal reasoning centered on the Examination Report's failure to definitively resolve methodological disputes essential for ensuring that the LDP met the required HLS and HLR. Key points include:

• Methodology for HLS Calculation: The court scrutinized the two approaches—the compound and annualised methods—used in the Technical Report. It held that the Examination Report did not sufficiently resolve which methodology was appropriate, thereby failing to establish whether the HLS met the five-year requirement.
• Generosity Allowance Application: The court found that the reporter incorrectly applied the 15% generosity margin, effectively altering the immutable HLR set by the SDP. This misapplication confused supply and demand metrics, undermining the HLR's integrity.
• Compliance with SDP and SPP: The Examination Report inadequately assessed whether the LDP met the HLR across different Housing Market Areas (HMAs) and Housing Sub-Market Areas (HSMAs), violating Policy 8 of the SDP and para 119 of the SPP, which mandate a robust methodology for housing land allocation.
• Consideration of Housing Land Audit (HLA) 2018: The reporter failed to properly incorporate the latest Housing Land Audit data, which revealed significant shortfalls in meeting the HLR, thereby weakening the LDP's compliance stance.

This reasoning culminated in the court determining that the Examination Report did not fulfill its duty to ensure methodological fidelity, leading to the quashing of the flawed LDP chapter.

Impact

The judgment has profound implications for future LDP preparations and reviews:

• Enhanced Methodological Scrutiny: Local authorities must employ robust and policy-compliant methodologies when calculating HLS and HLR, ensuring transparency and adherence to SDP and SPP requirements.
• Judicial Oversight: The court reaffirmed its role in scrutinizing administrative decisions, particularly those involving complex policy implementations, thereby reinforcing the accountability of planning authorities.
• Policy Adherence: The decision underscores the non-negotiable nature of policy directives within SPP and SDP, mandating that LDPs accurately reflect and comply with these frameworks.
• Future Planning Reports: Examination Reports must conclusively address all methodological disputes, providing clear and reasoned judgments to withstand judicial review.

Collectively, these impacts ensure that housing developments are planned with greater precision, aligning with strategic housing needs and sustainable development goals.

Complex Concepts Simplified

The judgment involves several intricate planning concepts that are critical to understanding the case:

• Housing Land Supply (HLS): This refers to the availability of land suitable for housing developments over a specified period, ensuring that housing demands can be met without delays.
• Housing Land Requirement (HLR): The total number of new homes that need to be built to satisfy current and projected housing demand within a strategic period.
• Generosity Allowance: An additional margin added (in this case, 15%) to the HLR to account for uncertainties and ensure a sufficient buffer in housing land allocation.
• Local Development Plan (LDP): A statutory document prepared by local authorities outlining the framework for land use and development within their jurisdiction, aligned with broader strategic plans.
• Strategic Development Plan (SDP): A comprehensive plan that sets out long-term strategies and objectives for housing, infrastructure, and economic development within a region.
• Scottish Planning Policy (SPP): National policies that guide local authorities in preparing and implementing development plans, ensuring consistency and adherence to overarching planning objectives.

Understanding these terms is essential for grasping the court's analysis and the significance of their interplay in the context of local housing development.

Conclusion

The [2020] ScotCS CSIH_44 judgment serves as a critical reminder of the imperative for methodological accuracy and strict policy adherence in local planning processes. By highlighting the Examination Report's deficiencies in resolving methodological disputes and misapplying policy directives, the court reinforced the necessity for comprehensive and transparent planning practices.

For housing developers, local authorities, and legal practitioners, this case underscores the importance of:

• Employing robust methodologies aligned with established planning policies.
• Ensuring comprehensive consideration of all relevant data, including Housing Land Audits.
• Maintaining transparency and reasoned judgment in Examination Reports to withstand potential legal challenges.

Ultimately, this judgment enhances the framework for sustainable housing development in Scotland, ensuring that future Local Development Plans are both policy-compliant and methodologically sound, thereby fostering an environment conducive to meeting housing demands effectively.