Mon 08 Jul 2024

National Planning Framework 4: Guidance from the Courts

As the first half of the year draws to a close, it presents a good opportunity to look back and draw together the decisions the Court of Session have handed down over the last few months which provide guidance on the interpretation of three key policies in National Planning Framework 4.

Policy 3 (Biodiversity)

The case of Wildcat Haven Community Interest Company v Scottish Ministers [2024] CSOH 10 provided helpful clarity on the approach to be taken to policy 3 of NPF4.

The petitioners argued that a decision by the Scottish Ministers to grant consent for a wind farm development was unlawful as the Scottish Ministers had failed to undertake a sequential and specifically weighted approach to the mitigation hierarchy.

However, the Court disagreed with this suggestion, finding that there was nothing in the language of the policy or surrounding context to support this approach and noting that a policy document was by its nature "an unlikely repository" for such a requirement.

Whilst this decision provides welcome clarification on how to approach the biodiversity policy in NPF4, biodiversity continues to be an evolving area with biodiversity planning guidance having been published by the Scottish Government as a living document in November 2023 and with work currently underway by NatureScot to develop a biodiversity metric to assist with policy application.

We previously wrote about this case in an article published here.

Policy 16 (Housing)

The much-anticipated case of Miller Homes Ltd v Scottish Ministers [2024] CSIH 11 finally determined the correct approach to be taken to policy 16 of NPF4.

This case involved an appeal against the Scottish Ministers' decision to refuse planning permission for a housing development in West Lothian. The decision turned on the interpretation of policy 16(f) of NPF4 and whether that housing release policy is incompatible with the existing housing release policy in the local development plan.

The Court held that policy 16(f) was incompatible with the local development plan policy and, as such, policy 16(f) fell to be applied in favour of the housing release policy in the local development plan. Interestingly, the Court also found that a deliverable housing land pipeline could be established in delivery programmes which replace action programmes and without the need for a new-style LDP and, separately, that the Scottish Ministers were entitled to conclude that "the MATHLR [the Minimum All-Tenure Housing Land Requirement set out in NPF4] represents the most up to date target for housing land within the development plan."

This decision has prompted the Chief Planner to issue a letter advising on the application of Policy 16 which can be read here.

We previously wrote about this case in an article published here.

Policy 28 (Retail)

The case of Tesco Stores Limited v Perth and Kinross Council [2024] CSOH 46 provided helpful clarity on the approach to be taken to policy 28 of NPF4.

This case involved a judicial review by Tesco of Perth and Kinross Council's decision to grant planning permission for a 1,800 sqm Aldi store in Perth. The primary question was whether such a store could be categorised as a "new small scale neighbourhood retail development" in order to benefit from the limited policy support afforded to out of centre development.

The Court found that the store could not be categorised as such a development as it was neither a small scale nor neighbourhood retail development. In particular, the Court rejected the Council's argument that as the proposed store was replacing an existing Aldi store in a more central location it was only the increase in floorspace between the two stores which fell to be assessed against the policy.

We previously wrote about this case in an article published here.

Going Forward

Whilst these three decisions contain helpful guidance on the interpretation of some of the key policies contained in NPF4, there will no doubt be more decisions to come further down the line as the framework continues to bed in.

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