Last month I published an article titled "NPF4 - Policy 16: Teething problems or full-blown toothache?". You can read the full article here.

One of the "teething problems" I identified concerned the lack of Scottish Government guidance on 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.

I explained that some planning authorities were taking 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. I expressed the view that that was "plainly incorrect, both as a matter of law and rational application of policy." 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.

That view has been shared by others - not least James Findlay KC in an opinion submitted in the Mossend Appeal.

I am sorry to see that this teething problem has now developed into full-blown toothache.

Yesterday the Scottish Ministers called in the Mossend appeal for their determination on the basis "the appeal raises national issues in terms of the application of National Planning Framework 4."

In isolation, that decision may not lead to widespread toothache. However, it has resulted in other housing appeals being sisted pending the Minsters' decision in Mossend. That, and the astonishing basis on which those other appeals have been sisted, is where the national toothache comes from.

This is an excerpt from a DPEA letter to an appellant in one of the affected cases:

I am writing to advise you that Ministers have now recalled a residential development appeal in West Lothian (PPA-400-2147) for their own determination. Submissions in that case directly challenge the application of all elements of NPF4 Policy 16 prior to adoption of ‘new style’ LDPs. Ministers consider that this raises national issues in terms of the application of NPF4.

Okay. That's their prerogative. It's not ideal for the appellants in that case, but (arguably?) understandable. However, what follows is concerning:

Recalling the appeal for Ministers’ own determination will provide an opportunity for Ministers to set out, in their decision letter, more detail on how the policy should be applied.

The proper interpretation of policy is a matter of law for the court; the application of policy is a matter of judgment for the decision maker. What are decision makers to make of the Ministers' decision letter and what it says about how the policy should be applied? It is not policy, it is not guidance and it is not binding. The Scottish Ministers are not the final adjudicators on the meaning or application of policy. It will be open to applicants in the other appeals to argue that the Scottish Ministers' “detail on how the policy should be applied” is wrong and/or should not be followed in their particular case, and the Reporter would be entitled to accept that argument. Legal challenge feels innevitable.

DPEA currently has before it other appeals which will now need to be placed in sist pending the issue of the Ministerial decision in that case. This is because decisions by individual Reporters in those other cases mustn’t prejudice or otherwise undermine the pending ministerial decision.

This is a very worrying statement. The Scottish Government published and adopted NPF4 without guidance, despite repeated requests and promises. In the absence of any guidance, it is for the decision makers (planning authorities and Reporters) to apply the policies in NPF4 as they see fit (acting reasonably). On what basis could an individual Reporter’s decision “prejudice or otherwise undermine the pending ministerial decision”?  That statement presupposes their is a reasonable range of approaches to the application of NPF4, which Ministers are seeking to fetter?  What about planning authority decisions on the application of NPF4?  Will there be a call direction for all housing planning applications on the basis a decision in one of those might “prejudice or otherwise undermine the pending ministerial decision"?

The Reporter in this case, in consultation with the Chief Reporter, has decided that this case will now be placed in sist pending issue of the Ministerial decision. Once that is issued, parties in this case will have the opportunity to comment on the Ministerial decision prior to determination of the appeal.

See above comment on the status of the Ministers' decision. This will almost certainly lead to dispute and legal challenge – by the disappointed appellant or planning authority.

DPEA apologises for the unavoidable delay in this case. Please do not hesitate to contact me if any further information is required.

This delay was 100% avoidable. The Scottish Government knew this problem was coming and chose to publish and adopt NPF4 without putting in place proper transitional guidance. In the midst of a housing crisis, this delay is incredibly disappointing.

Anyone know a good dentist?

[Originally published on LinkedIn on 27 April 2023]

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