The Scottish Planning Policy and Housing

The Royal Town Planning Institute (RTPI) is the champion of planning and the planning profession. We work to promote the art and science of planning for the public benefit. We have around 2,100 members in Scotland and a worldwide membership of over 25,000. RTPI Scotland’s members represent both the public and private sector interests and are extensively involved in various housing matters across Scotland including, development plan policy, public local inquiries, planning appeals, court cases, housing assessments, housing land audits and housing delivery programmes.

Background

Scottish Ministers are consulting on proposed interim changes to the Scottish Planning Policy (SPP) (2014) to clarify specific parts of the SPP relating to planning for housing. The Scottish Government issued this Consultation Paper in July 2020.

Interim Status

The consultation paper states that the proposed amendments are interim changes ahead of the adoption of National Planning Framework 4 (NPF4), which will replace SPP. As the RTPI understands it publication of the draft NPF4 for consultation is not now expected until September 2021, with the final version published in 2022.  Once the amendments to SPP are finalised, it is also proposed that section 2 of Planning Advice Notice 2/2010 on Housing Land Audits will be withdrawn.   

What are the policy objectives behind the issuing of the Consultation Paper?

The Scottish Government is committed to a plan-led system as development plans form the basis of planning decision-making to enable the right developments in the right locations and the RTPI strongly supports this stance.

In addition, Ministers want to achieve 4 main policy objectives as summarised below:

• Support a plan-led approach to decision-making and maintaining the legal status of the development plan as a basis for decisions in all cases
• Remove the presumption in favour of development that contributes to sustainable development from the SPP (“the presumption”) given that it is considered to have potential for conflict with a plan-led approach and has given rise to a significant number of issues for decision- makers in its application
• Provide a clearer basis for decisions on applications for housing on sites that have not been allocated in the LDP where there is a shortfall in the effective housing land supply
• Clarify what is meant by a 5- year effective land supply and in particular, preventing sites that are capable of becoming effective being excluded solely on the basis of programming assumptions

RTPI Context

RTPI Scotland supports the open, transparent and inclusive way that Scottish Government has sought ideas on its planning reform agenda and is keen to continue to provide constructive ideas and thinking to support this. We have always worked with other key stakeholders in a constructive manner and want to continue in that spirit to focus on the need for the new, emerging planning system to be effective and fit for purpose.

At the heart of our submission are a number of key principles and ambitions for the planning system, namely that it:

• takes a plan-led approach to development
• provides certainty and consistency to communities and developers
• promotes the need for quality of place
• promotes sustainable development

RTPI Scotland recognises the challenges faced and agrees with the ambitions behind the Scottish Government’s consultation paper.  However we have concerns that the approach it outlines will not support these ambitions.

We have discussed the paper and its implications at our Scottish Executive Committee and has also held an RTPI Scotland Member drop-in session to discuss it.  Both discussions have been very valuable and helped to inform this response.  The key high- level points raised by our members included:

• The consultation exercise appears to be premature
• The current adversarial approach should be replaced with a nationally co-ordinated consensus to effective housing delivery through NPF4, Regional Spatial Strategies and the enhanced Local Development Plan processes
• It is not considered that a blanket removal of the presumption in favour of sustainable development will support ambitions to support the delivery of good quality homes in the right locations
• There is a lack of supporting, statistical evidence in the paper
• Other more practical, temporary measures should be considered to address potential shortfall situations and timescales for LDPs as has been done with other planning matters during the COVID-19 pandemic
• The wider impacts on related Government strategies, policies and approaches to planning and housing delivery do not feature in the paper and it is disappointing that these relationships and inter-connections are not acknowledged

This consultation response paper outlines our thoughts, including challenges for the Scottish Government to assess and consider. As always, we are happy to discuss our views and concerns in more detail with the Scottish Government after the consultation period has expired.

We appreciate the initial concerns raised by members on the proposal to remove the presumption in favour of development that contributes to sustainable development in SPP. These concerns related to perceptions that the proposed changes to the SPP were seen as a direction from Minsters which may have been given significant weight in current planning decisions. RTPI Scotland therefore welcomes the follow up letter from the Chief Planner, dated 4 September 2020 which clarifies that the existing policies remain in place and this will assist stakeholders with planning applications and appeals in the system right now which states "none of the changes proposed in the consultation aim to undermine or contradict Ministers' stated commitments to delivering good quality development, including housing and renewable energy projects”.

The RTPI appreciates that the context for planning for housing has changed significantly in recent months as outlined by the SG, but the mechanisms and processes for resolving these earlier debates and discussions around housing land supply and housing delivery have remained unresolved for a considerably longer period.

Our hope was that this current consultation process would comprehensively tackle the contemporary issues identified around litigation, planning appeal decisions and the statistical vagaries affecting effective land supply and housing delivery but feel it should be better dealt with by a more extensive period of consultation and joint working with relevant parties.

COVID-19

It is clear that the COVID-19 pandemic has had significant impacts for all stakeholders, in terms of resources, priorities, and timescales and it is not surprising that it has had impacts on the ability of local planning authorities (LPAs) to maintain the review cycle of Local Development Plans (LDPs) and particularly within the timeframes originally envisaged by all participants. SG acknowledges that it is also affecting housing delivery programmes and the rate of housing completions by developers and this all has implications for the plan-led approach to development.

In wider considerations the pandemic has brought about a renewed focus and vigour around the importance of the mutual inter-connections between health and well-being and the quality of our places and living community environments. This aspect has previously been highlighted by the RTPI in our submission of “the 10 Big Ideas” for the NPF and we see the imminent merger of SPP and NPF4 as a further enhanced opportunity to provide greater simplicity, clarity, consistency, and certainty to the new planning policy landscape. The RTPI strongly supports the SG broader intentions to further clarify policies, definitions and make them simpler and more understandable.

Court of Appeal Decision 

One of the supporting reasons for the issuing of the interim consultation paper is cited by SG is the recent decision by the Court of Session on an appeal (the Gladman appeal) that raised a number of issues about the current wording of the policy that SG believes requires a clarification. RTPI considers that decision should not be the only trigger for revising and rewording the SPP which requires fundamental reviewing and rewording in any event to update it and make it fit for purpose in the merger with NPF4.

Planning Appeals

The RTPI is aware that recent planning appeal decisions by the DPEA related to housing proposals and sites, particularly over the past 5 years, have referred to shortcomings in housing policy approaches by both SG and individual LPAs. Decision letters by Reporters have set out these and suggested remedies for improvements and clarifications. There are no references to this in the paper and this is regrettable. The RTPI hopes that an opportunity will be taken by the SG to incorporate Reporters’ views and contemporary appeal decisions views in future revised guidance.

A Collaborative Approach

The consultation document stresses “we need to overcome current conflict in the system, and actively address the lengthy technical debates we are seeing about the number of homes that we will need in the future”. RTPI completely agrees with this point and considers that an agreed national approach needs to be tackled urgently to avoid the wasted time and resources spent by all parties on statistical and mathematical debates and discussions both theoretical and practical. RTPI is aware of a considerable amount of joint working and collaboration which has been underway between key parties over the last few years and was disappointed that on previous occasions agreement could not be reached. There is more agreement between parties and local councils than may at first appear evident and RTPI hopes that this work can be accelerated and be an integral part of any further technical guidance.

RTPI responses to the 5 consultation questions

We have concentrated our comments primarily on our high-level strategic concerns and will leave detailed and procedural technicalities to individual Councils and other key stakeholders to raise.

Question 1: What is your view on our proposal to remove “the presumption” from the SPP, through the changes set out?

The SG sets out several reasons for the proposed removal of the presumption including,

• The element of confusion being caused
• The latest interpretation by the Court being inconsistent with the intention of the SPP
• The potential to undermine the primacy of the development plan
• The likelihood of more local plans exceeding 5 years in age due to delays associated with COVID-19 restrictions

The proposal to remove “the presumption” is the most contentious part of the proposed changes in the consultation paper for the reasons set out by the Scottish Government in paragraphs 32 and 33.

RTPI feels that this a radical measure which appears to be disproportionate to the issues being raised and is not the only way to tackle the problem in the interim.

The Gladman appeal decision challenge demonstrated that the terms of the presumption in favour of sustainable development, where plans are out-of-date, was being interpreted and used in a manner that adversely affected the primacy of the LDP and also decisions based on “balanced planning judgment”. The vast majority of applications for housing development are approved and those approvals are based on the principal policies in SPP on Sustainability and Placemaking, including the economic, environmental and social principles set out at paragraph 29, as reflected within the relevant development plan.

The paper does not provide any case evidence or statistics to set out “presumption” decisions in recent appeals into a wider context and this is disappointing. We see this as an important omission from the paper.

This is not the place to debate the merits or otherwise of the Gladman decision, but it has inevitably received mixed responses. It may or may not be cited in future appeal cases but RTPI feels that clarity can be provided to stakeholders in the form of an advisory note or letter from the Chief Planner as has been done in relation to other planning matters recently. A partial and restricted consultation exercise with the emphasis on technical changes is not the best way for such important matters to be satisfactorily resolved. Some stakeholders may have been misdirected by the nature of the consultation and assumes it was simply minor adjustments to wording, definitions and glossary terms.

In paragraph 30 the RTPI is concerned that the reference to development plans being “up-to-date” is too vague and imprecise and it should be amended to refer to an LDP being relevant. We all agree that it is vital to maintain the primacy of the development plan, but at the same time there has to be some controlled element of flexibility in appropriate circumstances e.g. where the development plan may be older than five years, but it still remains relevant.

Other amendments in the paper are designed to ensure that the term “tilted balance” is not intended to be a feature of the Scottish planning system that overrides normal planning judgement based on the development plan and other material considerations. Although this is a feature in the English planning system, RTPI strongly supports the SG’s stance on this matter and suggests that this needs to be clearly stated in the SPP in a reworded Para 28.

The RTPI has previously highlighted the fundamental importance of health and wellbeing considerations highlighted during the pandemic, but also essential for the ongoing recovery period and beyond. The SG has confirmed these aspects are of even greater importance now, as it has become even clearer that the quality of our homes can contribute a great deal to our health and wellbeing, and that housing delivery will play a key role in our future economic recovery.

The whole principle of sustainable development is well established and understood and underpins planning approaches to development across all sectors. RTPI does not consider that its wholesale removal is necessary or required and considers this to be a backward step

Question 2: What is your view on the proposed changes set out and our aim of clarifying the definition of the 5 - year effective housing land supply to reflect the currently exceptional market circumstances?

The proposal to clarify Paragraph 123 and the glossary definitions of effective and established housing land supply, for the reasons provided by Scottish Government is understood by RTPI but in line with our overall thoughts it seems to be a partial and hurried response which requires more discussion and collaboration.

The circumstances of Covid-19 and dramatic impacts particularly on market led housing delivery, have served to throw into focus the distinction between available housing land and the rate at which it is delivered. RTPI is pleased that clarity is being brought to terms such as, available land and the rate or programming of its build, but still feels that there are wider and broader discussions which need to take place to finally determine the definitional aspects set out in the paper.

Housing Land Audits are acritical part of the process and RTPI believes that there is general agreement across sectors on their purpose and usefulness. RTPI also understands that there is almost total agreement between LPAs and Homes for Scotland in the collaborative approaches they have jointly developed, and this approach needs to be taken forward further in the wider NPF work programme.

RTPI would like to highlight that housing in Scotland is delivered on a multi -sector and multi-agency basis and each provider has widely different delivery drivers and funding and investment packages. Again, it would have been helpful to set this out in a statistical context out in the paper.  

For the reasons stated earlier RTPI does not support the wholesale removal of the presumption in favour principle as an interim measure.

Question 3 (a) What is your view on the proposed changes to paragraph 125, including the proposed calculation to establish the scale of the 5- year effective land supply in relation to alternatives?

RTPI is concerned about the use of the term “balanced planning judgment” set out at proposed paragraph 125 as it is difficult to define and apply any degree of precision.  It is generally understood as a concept, but it is also an area for further disputes and challenges. To avoid unnecessary litigation and scrutiny it needs to be made clearer and set out in the glossary. SG needs to apply absolute clarity to this term within the proposed policy amendments, incorporating the principles set out in Paragraph 29.

It is clear that the different methodologies put forward for the calculation of an effective land supply employed by various stakeholders at Development Plan Examinations, Planning Appeals and in court cases has been a source of contention between all parties, consumed scarce resources and still cause significant debate and confusion.

RTPI considers that the revisions and suggested methodology for the calculation of a five-year effective land supply appear largely in line with the Scottish Governments and Heads of Planning Scotland’s (HOPS) calculations within the annual Planning Performance Framework and it is therefore a basis for the wider discussions which RTPI is advocating.

We note the clarification that the Scottish Government has provided that the “residual” or “compound” method should not be used in the calculation of housing land but again we feel that a wider level of engagement and agreement needs to be proactively initiated and considered by SG.

The approach to the calculation of the sufficiency of the land supply is not fully set out and, for the avoidance of any doubt, these changes would have been aided by a visual illustration of the calculation methodology.

RTPI is unsure what the new term, “extent of the forward 5 -year effective land supply” means and this needs to be further clarified and explained.

Question 3 (b) What is your view on the proposed changes to paragraph 125, including the proposed approach to assessing proposals where a shortfall emerges?

The approach suggested encourages reflection on the fuller policy context provided by SPP and the development plan.

RTPI considers that the proposed text of paragraph 125, requires to be amended to reflect that Strategic Development Planning Authorities remain relevant in some local authority areas, prior to the transition towards Regional Spatial Strategies (RSS).

RTPI is aware of the recent Court of Session Decision in Inverclyde, which highlighted the complexities introduced to the calculation of the Housing Land Requirement, as a result of the timing of Plan preparation and adoption in SDP areas where the Land Requirement is set earlier in the process. As similar timing issues may arise under NPF4 and/or RSS preparations the Scottish Government may wish to consider reflecting this detail in SPP or preferably in more detailed, related technical advice to provide further clarity to all parties.

The term “in both scale and kind” is not a precise term and is open to misinterpretation and should be deleted, including the environmental considerations, to be taken into account.

Question 4: Do you agree that the proposed amendments will not directly impact on other (non-housing) types of development? If not, please provide evidence to support your view.

Although in Para 15 SG states that “we don’t expect the proposed amendments will directly affect decisions relating to other types of development to the same extent as housing proposals” it appears to RTPI that, although the consultation paper is focussed on housing delivery the proposed removal of “the presumption” could have wider impacts on other matters set out in the SPP affecting other sectors, including renewables.

The policy presumption is universally applicable and is not confined to housing. It will be important to allay any concerns in this regard particularly reading wider across the principal policies set out in the SPP on Sustainability and Placemaking, including the economic, environmental and social principles.

The RTPI is concerned that implementation of the policy as currently envisaged could unintentionally compromise the ability of Scottish Government to deliver on its wider ambitions for a green recovery response to the COVID-19 pandemic and could also have negative knock- on impacts on its wider aspirations for economic growth and job creation. Unintended consequences need to be avoided and other types of development should not be penalised.

Question 5: Do you agree that fuller impact assessments are not required? If not, please provide evidence to support your view.

RTPI also does not consider that the proposed changes significantly alter the original impacts assessments undertaken on SPP when it was originally published in 2014.

Having said that, RTPI feels that a broader assessment should have been carried out, linked to the other key strategies and polices which housing delivery impacts on. RTPI agrees with the Scottish Government that there is no need for further impact assessments as the proposed changes to SPP are not significant in the overall context of the SPP.

The 4 screening documents used by SG confirm that in SG’s view the proposed policy changes will have no impact but RTPI considers this to be an over- simplification of the actual impacts on delivering homes across Scotland on much broader SG policy frameworks such as the National Outcomes for Scotland.

Conclusions

The RTPI considers the proposals set out in the consultation paper to be an essential starting point in the move towards greater clarity and certainty in housing planning policy but does not feel that this consultation process is the best way to take matters forward in a holistic manner or a collegiate basis.

Withdrawing “the presumption” was always going to generate different views and opinions across the RTPI but we do feel it is a premature move which threatens to undermine other agreed SG policies and aspirations and it impacts on other services and providers across all sectors.

The current proposals may, unintentionally, serve to divide opinions more strongly and therefore the balanced judgement for the SG to achieve is to reconcile both public and private sectors views and concerns and develop a truly jointly agreed and joined up national approach to housing delivery. We see that vehicle being the evidence base work and co-operation on developing the new style NPF as a truly national plan for Scotland which is fully costed and sets out clear aspirational housing targets.

The RTPI feels strongly that we urgently need to move away from overtly statistical debates and the inevitable microscopic focus on housing numbers. The delivery of housing in Scotland is much more serious than a mathematical exercise, although the base statistics are essential and inevitable.

It is a basic human right for individuals to be housed and RTPI Scotland feels that the key stakeholders require to reconsider and reappraise the current approaches to housing policies with SG as a matter of urgency if we want to deliver the ambitions of the SG and achieve both the quality and type of housing Scotland needs and in locations which are economically and environmentally sustainable, well connected, and healthy.

Contact

The RTPI is happy to discuss these comments directly with the Scottish Government and provide any clarification necessary. We would welcome further related dialogue on the incorporation of SPP into NPF4 and the wider consideration of our “10 Big Ideas for NPF4”

Please contact Craig McLaren, Director of RTPI Scotland on [email protected] or by phone on 0131 229 9628 or 07850 92688