NPF4 has been with us for just over two weeks and the teething problems are already beginning to emerge.

Time well tell if they develop into full blown tooth ache, or if the Scottish Government and planning authorities can come up with an effective remedy.

The first ache comes in the form of a divergence of approach amongst planning authorities on the question of how NPF4 should be applied in development management decision making.  The letter from the Chief Planner and Planning Minister on “transitional arrangements” has done little to prevent what was surely an avoidable and inevitable situation in this regard.

The starkest example of the divergence of approach being taken – or, to put it another way, the lack of a coherent nationwide approach to the implementation of NPF4 – is the publication by City of Edinburgh Council of a “policy framework” and Stirling Council’s publication of guidance on the issue of “incompatibility” between NPF4 and LDP policies.

Edinburgh’s policy framework effectively puts a red pen through policies in its existing local development plan, which the Executive Director of Place and his team have decided are incompatible with policies in NPF4.

Stirling Council on the other hand has produced a set of guiding principles, which it says should inform the question of incompatibility when that question falls to be answered in the determination of planning applications.  In other words, it is for the planning authority to consider the issue of incompatibility with due regard to the specific circumstances of a particular application and the material considerations that exist when it comes to determine that application.  That is in stark contrast to Edinburgh’s ‘blanket’ approach.

The only thing they have in common is they both explain that ultimately we will need to wait for decisions to be appealed and challenged in court before there will be a definitive answer.

This is deeply disappointing.  Planning authorities have known for some time that this transitional period was coming and they would need to consider compatibility between NPF4 policies and local development plan policies.  It is difficult to understand why planning authorities could not have come up with a single, coherent approach which planners and applicants could apply across Scotland with a degree of confidence and certainty.

The second ache – again on which there is no centralised guidance or common approach – is the extent to which Policy 16 Quality Homes can be applied in development management decision making, in whole or in part, before new local development plans are brought forward under the new development planning system.

Some planning authorities, and indeed some applicants, appear to take the view that Policy 16 is now fully in force, must be taken into account in development management decision making and effectively renders existing LDP housing policies obsolete.  That is plainly incorrect, both as a matter of law and rational application of policy.  The Chief Planner’s and Planning Minister’s guidance does not change that.

On a sensible reading of Policy 16, it cannot apply in full until such time as the new local development plans are adopted, which amongst other things will establish a Local Housing Land Requirement (based on the Minimum All-Tenure Housing Land Requirement or MATHLR) and a delivery pipeline of short-, medium- and long-term housing land.  It clearly relies on new local development plans being in place and it is not possible to apply the policy until that happens.

This is relevant to the question of the compatibility of Policy 16 with existing LDP housing policies. In particular, so called ‘exceptional release’ policies.  Until such time as new LDPs are brought forward, the policy position in the development plan on the number of homes that need to be built and the amount of land required to achieve that remains the housing supply target and the housing land requirement in existing LDPs. The abolition of strategic development plans does not affect that.

That policy position will only change once new LDPs come forward, fixing a Local Housing Land Requirement which exceeds the MATHLR in NPF4.  Prior to those new LDPs being adopted, where the housing supply target is not being met and there is insufficient housing land allocated in the local development plan to achieve either the housing land requirement or the housing supply target, Policy 16 is of no help whatsoever in achieving what the Lord President identified in the court’s recent decision on Hens Nest Road as the overall purpose of development plan housing policy – to ensure that housing need and demand is met in full.

Until the new LDPs are adopted, there is no short-, medium- and long-term delivery pipeline of allocated land that can be accessed.  Indeed, the policy in NPF4 that will inform the content of new LDPs explains that planning authorities must put in place measures to ensure land can be released where there is under delivery. Until the new LDPs are adopted there is no new policy position on what those measures should be.  However, there is no policy ‘lacuna’ – planning authorities can continue to use existing policies to release unallocated land.

Until new LDPs come into force, Policy 16(f) cannot be applied, and there is therefore no incompatibility with existing policies that enable the release of unallocated land. I appreciate that appears to be contrary to the Chief Planner’s and Planning Minister’s advice to planning authorities. However, in my opinion, that advice is wrong.

Stirling Council explains the purpose of the incompatibility test and how it should be applied in response to an application for planning permission. The decision maker must consider whether the application of any particular policy in NPF4 is incompatible with a policy in the local development plan.  However, prior to new LDPs coming into force, as explained above, NPF4 Policy 16 cannot be applied.  Therefore, there is no need to consider whether any of the policies in the LDP are incompatible with that policy.

Any other approach would result in a policy vacuum, which will result in under delivery and the existing housing crisis worsening.

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