Introduction

The case of Miller Homes Ltd v Scottish Ministers ([2024] ScotCS CSIH_11) represents a pivotal moment in Scottish planning law, particularly concerning the hierarchy of policies within development plans. This appeal revolved around Miller Homes Ltd's application for planning permission to develop 250 residential units on farmland in Mossend, West Calder. The Scottish Ministers refused the application based primarily on Policy 16(f) of the Fourth National Planning Framework (NPF4), which supersedes existing local development plan (LDP) policies. The appellants contended that until the West Lothian LDP is updated to incorporate NPF4 changes, Policy 16(f) should not apply, and instead, Policy HOU 2 of the existing LDP should govern the decision.

Summary of the Judgment

The Scottish Court of Session, Inner House, delivered its judgment on May 3, 2024, dismissing the appeal filed by Miller Homes Ltd. The court upheld the decision of the Scottish Ministers to refuse planning permission, emphasizing that Policy 16(f) of NPF4 takes precedence over existing LDP policies such as Policy HOU 2. The court found that the proposed development did not meet the stringent criteria set forth in Policy 16(f), which restricts the use of unallocated land for housing developments unless specific conditions are met. Consequently, the appellant's reliance on Policy HOU 2 was deemed untenable as Policy 16(f) effectively rendered it inapplicable in this context.

Analysis

Precedents Cited

The judgment meticulously references several key precedents that influenced the court’s decision:

• West Lothian Council v The Scottish Ministers [2023] CSIH 3; highlighted the interplay between old and new LDPs.
• Gladman Developments Ltd v The Scottish Ministers [2020] CSIH 28; reinforced the importance of consistent policy application.
• Hallam Land Management Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808; emphasized the necessity for coherent decision-making processes.
• North Wiltshire DC v Secretary of State for the Environment [1992] 65 P & CR 137; and Hallam Land Management Ltd v Scottish Ministers [2014] CSIH 110A; underpinned the need for logical and consistent policy enforcement.

These precedents collectively underscored the imperative for policy coherence and the supremacy of national frameworks over local plans when conflicts arise.

Legal Reasoning

The court's legal reasoning was anchored in the statutory framework established by the Town and Country Planning (Scotland) Act 1997, as amended by the Planning (Scotland) Act 2019. Key points include:

• Section 24(3) of the 1997 Act: Establishes that in case of policy incompatibility, the later-in-date policy prevails. Since NPF4 was adopted in February 2023, its policies supersede older LDP policies.
• Policy Hierarchy: NPF4's Policy 16(f) explicitly restricts the use of unallocated land for housing, which directly conflicts with Policy HOU 2 of the West Lothian LDP that sought to maintain a five-year effective housing land supply.
• Interpretation of Policy 16(f): The court found no basis for the appellants' argument that Policy 16(f) was inoperative pending the adoption of new-style LDPs. The policy was deemed effective immediately upon NPF4's adoption, thus nullifying HOU 2's applicability.
• Compliance with Policy Criteria: The proposed development failed to meet the stringent criteria outlined in Policy 16(f), particularly concerning sustainability, integration with public transport, and alignment with broader environmental policies.

The court concluded that the Scottish Ministers acted within their legal authority, applying policies consistently and in alignment with statutory mandates. The appellants’ interpretations were viewed as speculative and lacking legal grounding.

Impact

This judgment has significant implications for future planning applications in Scotland:

• Policy Supremacy: Reinforces the hierarchy of national planning frameworks over local development plans, ensuring that national objectives are consistently prioritized.
• Clarity on Transitional Arrangements: Clarifies that new policies like NPF4 take immediate effect, even if local plans have yet to be updated, thereby preventing potential loopholes in policy application.
• Emphasis on Sustainability: Underscores the Scottish Government’s commitment to sustainable development, as policies increasingly focus on quality, diversity, and environmental considerations.
• Legal Precedent: Sets a firm legal precedent for interpreting and applying new national policies, providing guidance for both planners and developers in navigating the evolving regulatory landscape.

Stakeholders in the housing and development sectors must align their proposals with NPF4’s criteria to secure planning permissions, ensuring adherence to sustainability and strategic land use policies.

Complex Concepts Simplified

Policy Hierarchy

Policy Hierarchy refers to the structured order in which planning policies are applied. In Scotland, national policies (like those in NPF4) take precedence over local development plans. This ensures uniformity and alignment with broader national objectives.

National Planning Framework (NPF4)

The National Planning Framework 4 (NPF4) is Scotland’s strategic spatial plan, setting out policies and proposals for land development and use. Adopted in February 2023, it prioritizes sustainable development, climate change mitigation, and the creation of high-quality, diverse housing.

Local Development Plan (LDP)

A Local Development Plan (LDP) is a detailed plan prepared by local authorities outlining policies and proposals for land use within their jurisdiction. LDPs must align with national policies but are subject to changes based on evolving national frameworks like NPF4.

Policy 16(f) vs. Policy HOU 2

Policy 16(f) of NPF4 restricts the use of unallocated land for housing unless specific conditions are met, emphasizing sustainability and strategic land use. Policy HOU 2 from the West Lothian LDP aimed to maintain a five-year effective housing land supply, allowing for the development of greenfield land under certain conditions. The conflict arose from Policy 16(f) superseding Policy HOU 2, leading to the refusal of the proposed development.

Conclusion

The dismissal of Miller Homes Ltd's appeal in Miller Homes Ltd v Scottish Ministers underscores the Scottish judiciary's commitment to upholding national planning frameworks over conflicting local policies. By prioritizing Policy 16(f) of NPF4, the court has reinforced the imperative for sustainable, strategically aligned development across Scotland. This decision not only cements the authority of NPF4 but also provides clear guidance for future planning applications, ensuring that housing developments adhere to national sustainability and land use priorities. Stakeholders must now navigate the planning landscape with a heightened awareness of the supremacy of national policies, aligning their proposals with the stringent criteria set forth to foster sustainable and high-quality housing developments.