Appeal by Miller Homes Ltd against The Scottish Ministers (Court of Session)

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 planning application was submitted to West Lothian Council on 7 March 2022, but the Council failed to determine it within the statutory period. Consequently, the Appellant appealed to the Respondents (Scottish Ministers) on 1 August 2022. A planning reporter held a hearing in December 2022 and subsequently recommended refusal of planning permission. On 26 April 2023, the Respondents called in the appeal to determine it themselves, citing national issues related to the application of the Fourth National Planning Framework (NPF4). On 19 July 2023, the Respondents dismissed the appeal and refused planning permission, principally on the basis that the development was incompatible with Policy 16(f) of NPF4, which had been adopted on 13 February 2023. The Appellant contended that Policy 16(f) could not take effect until the West Lothian Local Development Plan (LDP) was updated to reflect NPF4, and sought to rely instead on Policy HOU 2 of the existing LDP. The Respondents maintained that Policy 16(f) superseded and prevailed over HOU 2. The appeal concerns the relationship between the newly implemented 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 the adoption of a new-style LDP.
2. Whether Policy 16(f) is operable in the absence of a deliverable housing land pipeline within the LDP.
3. The interpretation and application of the requirement to maintain a five-year effective housing land supply under Policy HOU 2 in light of the changes introduced by NPF4.
4. Whether the Respondents erred in law or acted irrationally in refusing planning permission based on the incompatibility with NPF4 and LDP policies.

Arguments of the Parties

Appellant's Arguments

• Policy 16(f) is inoperable until a new-style LDP is adopted because it depends on tools and concepts, such as the deliverable housing land pipeline, which only exist in new-style LDPs.
• There was no indication in NPF4 or its accompanying materials that Policy 16(f) was intended to apply before new-style LDPs are in place.
• Until a new-style LDP is implemented, the existing LDP policies, including HOU 2, remain applicable and require maintaining a five-year effective housing land supply.
• The Respondents' interpretation that Policy 16(f) supersedes HOU 2 is erroneous and leads to irrational and inconsistent outcomes, especially given the significant shortfall in housing land supply in West Lothian.
• The Transitional Provisions Regulations and the 2023 Regulations do not affect the substantive content of the existing LDP or its action programmes, which have merely been renamed delivery programmes.
• The Respondents failed to provide the Appellant an opportunity to make representations on the new regulations, constituting a breach of procedural fairness.
• The Respondents erred in concluding that HOU 2 did not support exceptional release of land, misapplying concepts relevant only to new-style LDPs.
• The calculation of the five-year effective housing land supply was flawed, particularly the conclusion that it could not be calculated due to the plan period ending soon.
• The Respondents failed to provide adequate reasons for departing from prior consistent decision-making, notably in relation to environmental policies ENV 2 and ENV 7.

Respondents' Arguments

• Policy 16(f) forms part of the development plan and prevails over HOU 2 pursuant to section 24(3) of the 1997 Act due to its later date.
• Policy 16(f) is capable of rational application even in the absence of a deliverable housing land pipeline, and it is not confined to new-style LDPs.
• Old-style LDPs may continue to operate with delivery programmes that include a housing land pipeline, as demonstrated by the Aberdeen City Council example.
• The appellants' disagreement with the application of Policy 16(f) is a matter of planning judgment, not legal error.
• The five-year effective housing land supply is a matter of planning judgment; the Ministers reasonably concluded that the Minimum All-Tenure Housing Land Requirement (MATHLR) forms part of the development plan and that housing delivery exceeds this target.
• The proposed development conflicts with multiple policies in NPF4 and the LDP, including those related to climate change, sustainable transport, and environmental protection.
• The Ministers provided adequate and intelligible reasons for their decision, supported by the reporter's comprehensive report.
• The changes introduced by NPF4 represent a policy shift away from maintaining a five-year effective housing land supply towards prioritizing quality, sustainability, and suitable location of housing.

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	Clarification on the purpose of existing LDP policies and the calculation of five-year effective housing land supply.	Referenced to contrast previous policy approach with NPF4 changes and to reject appellants' arguments on housing land supply calculation.
Gladman Developments Ltd v The Scottish Ministers [2020] CSIH 28; 2020 SLT 898	Requirement to assess the seriousness of housing land supply shortages and application of tilted balance.	Used to illustrate that the Ministers failed to make a broad assessment but ultimately the court found no error in Ministers' approach under the new policy regime.
Hallam Land Management Ltd v Secretary of State for Communities and Local Government [2018] EWCA Civ 1808; [2019] JPL 63	Requirement for consistent decision-making and proper reasoning in planning decisions.	Appellants invoked it to argue for consistency; court distinguished the case on factual and policy grounds.
North Wiltshire DC v Secretary of State for the Environment [1992] 65 P & CR 137	Principle that decision-makers must act consistently unless circumstances justify otherwise.	Referenced in appellants' submissions to support argument for consistent application of planning policies.
Hallam Land Management Ltd v Scottish Ministers [2014] CSIH 110	Requirement for consistency in planning decisions and adequate reasons for departures.	Appellants cited it to challenge Ministers' different approach, but court found no failure in reasoning.
Gladman Developments Ltd v Scottish Ministers [2019] CSIH 34	Requirement for intelligible reasons in planning decisions.	Referenced to argue that Ministers failed to provide adequate reasons; court rejected this contention.

Court's Reasoning and Analysis

The court analysed the legislative framework introduced by the Planning (Scotland) Act 2019 and the subsequent adoption of NPF4, which for the first time forms part of the development plan and introduces a significant shift in housing policy. The court noted that NPF4 replaces the previous Scottish Planning Policy's focus on maintaining a five-year effective housing land supply and the operation of the tilted balance with a new approach emphasizing quality, sustainability, and appropriate location of housing developments.

The court interpreted section 24(3) of the 1997 Act as establishing that, in the event of conflict between NPF4 and an LDP, the later in date prevails. Since NPF4 post-dates the West Lothian LDP, Policy 16(f) of NPF4 prevails over Policy HOU 2.

The court rejected the appellants' argument that Policy 16(f) is inoperable until a new-style LDP with a deliverable housing land pipeline is adopted. It found that delivery programmes under old-style LDPs may be updated and republished as delivery programmes, which can include a housing land pipeline, as demonstrated by Aberdeen City Council. The court held that the absence of a pipeline does not render Policy 16(f) inoperative, although it acknowledges transitional issues.

The court distinguished between development planning and development control, emphasizing that planning applications are to be determined in accordance with the development plan unless material considerations indicate otherwise. The absence or outdated nature of a delivery programme or pipeline may constitute such a material consideration.

Regarding the calculation of the five-year effective housing land supply, the court accepted the Ministers' reasoning that the MATHLR forms part of the development plan and that the housing delivery in West Lothian exceeds this target. It rejected the appellants' submissions that the five-year supply requirement continues unchanged under the new regime.

The court found no legal error or irrationality in the Ministers' refusal of planning permission, which was based on incompatibility with multiple policies in NPF4 and the LDP, including those addressing climate change, sustainable transport, environmental protection, and housing land supply.

The court also rejected the appellants' procedural fairness claim related to the opportunity to make representations on the new regulations, finding no breach of natural justice.

Finally, the court found that the Ministers provided adequate and intelligible reasons for their decision, supported by a comprehensive reporter's report.

Holding and Implications

The court REFUSED THE APPEAL.

The holding confirms that Policy 16(f) of NPF4, as the later and prevailing policy, applies over older LDP policies such as HOU 2, even in the absence of a newly adopted LDP with a deliverable housing land pipeline. The decision affirms the shift in Scottish planning policy towards emphasizing quality, sustainability, and appropriate location in housing development over the previous focus on maintaining a five-year effective housing land supply. The direct effect is that the proposed residential development was properly refused planning permission. The court did not establish new precedent beyond affirming the proper application of the legislative framework and policy changes introduced by NPF4 and associated regulations.