APPEAL BY MILLER HOMES LTD AGAINST THE SCOTTISH MINISTERS

Factual and Procedural Background

The Appellant sought planning permission for a residential development of 250 houses on farmland north of the B792 at Mossend, West Calder. The local planning authority, West Lothian Council, failed to determine the application within the statutory period. Consequently, the Appellant appealed to the Respondents against this failure. A planning reporter held a hearing and recommended refusal. The Respondents called in the appeal to determine it themselves due to national issues arising from the application of the newly adopted Fourth National Planning Framework (NPF4). Ultimately, the Respondents refused planning permission, principally on the basis that the development conflicted with Policy 16(f) of NPF4, which had been adopted on 13 February 2023. The Appellant contended that until West Lothian Council issues a new Local Development Plan (LDP) incorporating NPF4 changes, Policy 16(f) could not take effect, and the earlier LDP policy HOU 2 should apply instead. The dispute centered on the relationship between NPF4 and existing LDPs.

Legal Issues Presented

1. Whether Policy 16(f) of NPF4 applies and prevails over Policy HOU 2 of the existing West Lothian LDP in determining planning applications before a new-style LDP has been adopted.
2. Whether Policy 16(f) is inoperable in the absence of a deliverable housing land pipeline established by a new-style LDP and its associated delivery programme.
3. The interpretation and application of section 24(3) of the Town and Country Planning (Scotland) Act 1997 regarding conflicts between NPF and LDP policies.
4. Whether the Appellant's proposed development complies with the development plan policies, including NPF4 and the West Lothian LDP policies.
5. The proper approach to assessing effective housing land supply and exceptional release of land for housing under the changed planning framework.
6. Whether the Respondents erred in law or acted irrationally in their interpretation and application of the relevant policies and regulations, including transitional provisions.

Arguments of the Parties

Appellant's Arguments

• Policy 16(f) is inoperable until a new-style LDP and delivery programme establishing a housing land pipeline are in place; therefore, it cannot be applied to the current application.
• Until a new-style LDP is adopted, the existing LDP policy HOU 2 remains applicable and supports exceptional release of unallocated greenfield land where there is a shortfall in housing land supply.
• Section 24(3) of the 1997 Act does not apply because Policy 16(f) is not yet operational and does not supersede HOU 2.
• The Respondents’ approach ignores the continuing duty to maintain a five-year effective housing land supply under HOU 2 and undermines the justification for land allocations in the existing LDP.
• The Respondents failed to properly apply or consider transitional provisions and regulations, and the Appellant was denied procedural fairness in relation to these matters.
• The Respondents erred in law and acted irrationally by concluding that HOU 2 did not support exceptional release and by failing to assess the seriousness of any housing land supply shortfall.
• The Respondents’ inconsistent approach to policies ENV 2 and ENV 7 compared to previous decisions was unjustified and lacked proper reasoning.

Respondents' Arguments

• Policy 16(f) forms part of the development plan, having been adopted with parliamentary approval, and prevails over the older HOU 2 policy under section 24(3) of the 1997 Act.
• Policy 16(f) is capable of rational application even in the absence of a new-style LDP or delivery programme, with certain exceptions such as developments of fewer than 50 affordable homes.
• Existing LDPs, including the West Lothian LDP, are subject to updated delivery programmes (formerly action programmes) which incorporate housing land pipelines, even if the LDP itself is "old-style".
• The MATHLR target in NPF4 is a statutory target and forms part of the development plan, contrary to the Appellant’s submissions.
• The proposed development does not comply with relevant policies, including those relating to sustainability, transport connectivity, and environmental protections.
• The Respondents’ decision was a proper exercise of planning judgment, adequately reasoned, and consistent with statutory duties and previous case law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
West Lothian Council v The Scottish Ministers [2023] CSIH 3; 2023 SLT 175	Interpretation of housing land supply policies and the need for exceptional release of land under previous planning regime.	Distinguished and contrasted with the new policy regime under NPF4; used to illustrate changes in policy approach.
Gladman Developments Ltd v The Scottish Ministers [2020] CSIH 28; 2020 SLT 898	Assessment of five-year effective housing land supply and application of the "tilted balance" in planning decisions.	Referenced to explain that the "tilted balance" approach is no longer applicable under NPF4.
Hallam Land Management Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808; [2019] JPL 63	Requirement to assess seriousness of housing land supply shortfall and consistency in planning decisions.	Applied to highlight the need for broad assessment of housing land supply shortages and consistent decision-making.
North Wiltshire DC v Secretary of State for the Environment [1992] 65 P & CR 137	Principle that public authorities are bound to adopt consistent decision-making unless circumstances indicate otherwise.	Used to evaluate the Respondents' consistency in decision-making across similar cases.
Gladman Developments Ltd v Scottish Ministers [2019] CSIH 34	Judicial review principles concerning planning decisions and proper reasoning.	Referenced to support the requirement for intelligible and adequate reasoning in planning decisions.
Hallam Land Management Ltd v Scottish Ministers [2014] CSIH 110	Consistency in planning decision-making and proper application of planning policies.	Applied in assessing whether the Respondents maintained consistent approaches in their decisions.

Court's Reasoning and Analysis

The court examined the legislative framework established by the Planning (Scotland) Act 2019 and the amendments to the Town and Country Planning (Scotland) Act 1997, focusing on the introduction and statutory status of NPF4. It emphasized that NPF4, adopted with parliamentary approval, forms part of the statutory development plan and that under section 24(3) of the 1997 Act, where there is conflict between NPF and LDP policies, the later in date prevails.

The court rejected the Appellant's argument that Policy 16(f) was inoperable pending adoption of a new-style LDP and associated delivery programme. It held that the transitional provisions and regulations require existing LDPs to be supported by delivery programmes that establish a housing land pipeline, ensuring Policy 16(f) can operate even with old-style LDPs. The court found no statutory or policy basis for postponing the operation of Policy 16(f) until new-style LDPs are adopted.

The court noted the fundamental policy shift from the previous focus on maintaining a five-year effective housing land supply and exceptional release of land (under HOU 2 and earlier Scottish Planning Policy) to the new approach in NPF4, which prioritizes delivering housing in suitable locations and rewarding early delivery rather than compensating for shortfalls.

The court held that HOU 2 is inconsistent with Policy 16(f) and, applying section 24(3), is no longer part of the development plan. The MATHLR target in NPF4 is a statutory target and forms part of the development plan. The court found that the proposed development failed to comply with Policy 16(f) and other relevant policies, including those addressing sustainability, transport connectivity, and environmental protection.

The court found the Respondents’ reasoning to be comprehensive, rational, and consistent with the legislative framework and planning policy objectives. It rejected the Appellant's submissions of irrationality, procedural unfairness, or error in law, including the contention that the Respondents failed to provide intelligible reasons or acted inconsistently with prior decisions.

Holding and Implications

The appeal is refused.

The court upheld the Respondents’ refusal of planning permission for the proposed residential development. It confirmed that Policy 16(f) of NPF4 applies and prevails over the existing HOU 2 policy in the West Lothian LDP, even before the adoption of a new-style LDP. This establishes that the new national planning framework's housing policies take immediate effect and supersede inconsistent local policies.

The decision clarifies the operation of transitional arrangements in Scottish planning law and confirms that delivery programmes supporting old-style LDPs must align with NPF4 requirements, including establishing housing land pipelines. The ruling underscores a policy shift away from exceptional release based on shortfalls towards incentivizing early delivery and sustainable development in suitable locations.

No new precedent beyond the immediate application of NPF4 policies and interpretation of transitional provisions was set by this decision. The direct effect is that planning authorities and applicants must apply NPF4 housing policies in current planning determinations, even where local plans have not yet been updated.