“Presumption is our natural and original malady” - Michel de Montaigne

“Presumption is our natural and original malady” - Michel de Montaigne


by aurora planning

“This SPP introduces a presumption in favour of development that contributes to sustainable development…”
 
This is perhaps one of the most often quoted elements of Scottish Planning Policy (SPP) (arguably, so often so as to have become meaningless). The Scottish Government has however been consulting on proposed amendments to SPP which would see the removal of this presumption, along with a number of other changes. As might be guessed from the first sentence, we support the removal of ‘the presumption’, but why is this the case, and will the proposed changes actually address the malady that it is thought to currently represent?
 
By way of background, the presumption in favour of development that contributes to sustainable development was introduced into SPP in 2014, along with a number of policy principles that underpin this and an explanation of the relationship between the presumption and the statutory status of the development plan. Essentially, the statutory status of the development plan requires decisions on planning applications to be made in accordance with this, unless material considerations indicate otherwise, and the presumption should not change that. However, the presumption is elevated to a significant material consideration where the development plan does not contain up-to-date policies relevant to the application proposal, or the development plan is more than 5 years old, or if there is a shortfall in the 5 year housing land supply for the development plan area. Further, where there is a shortfall in the housing land supply, it has been found by the courts that any development that would address this would almost inevitably constitute development that contributes to sustainable development, and that planning permission should then be refused only if the proposed development would have adverse impacts which ‘significantly and demonstrably’ outweigh its benefits (see for example the Court of Session’s decision in Gladman Developments Limited against The Scottish Ministers ([2020] CSIH 28)). In other words, there is a ‘tilted balance’ in favour of planning permission being granted. At least partly in response to this, the proposed changes to SPP which the Scottish Government has been consulting on effectively seek to tilt this balance back again.
 
In summary, the proposed changes comprise:

- the removal of the presumption in favour of sustainable development, as set out above;

- the removal of any specific policy provision for situations where the development plan does not contain up-to-date policies that are relevant to the proposal, or the development plan is more than 5 years old, or if there is a shortfall in the 5-year housing land supply for the development plan area; and

- amendments to the definition and means of calculating the effective housing land supply, along with the introduction of text stating that any shortfall in the 5-year effective housing land supply will simply be another material consideration to be taken into account in the decision-making process, rather than tilting the balance in favour of development. 

The principles that underpin the presumption are however to be retained, with these requiring policies and decisions to:

- give due weight to net economic benefit;
- respond to economic issues;
- support good design;
- make efficient use of existing capacities of land, buildings, and infrastructure;
- support delivery of accessible housing, business, retailing and leisure development;
- support delivery of infrastructure;
- support climate change mitigation and adaption;
- have regard to the principles for sustainable land use;
- protect, enhance and promote access to cultural heritage;
- reduce waste, facilitating its management and promoting resource recovery; and
- avoid over-development.     

We support the removal of ‘the presumption’ from SPP on the basis that this:

- has always been a potential source of tension and conflict with regards to what constitutes sustainable development, and when and how the presumption should apply (as evidenced through the courts); 

- removes any certainty for communities (and developers) as to how their communities will develop in the future; 

- undermines the role of the decision-maker in deciding the weight to be given to relevant material planning considerations when determining applications; 

- does not allow for decisions to be made to reflect specific local circumstances; and 

- is fundamentally unnecessary, with the application of the policy principles and sound planning judgement already allowing for departures from the development plan where relevant policies are out of date or there are other good planning reasons for doing so, but with these providing a more balanced basis for such decisions than the application of a blanket presumption does. 

We also support the removal of any specific policy provision for situations where the development plan does not contain up-to-date policies that are relevant to the proposal, or the development plan is more than 5 years old, or if there is a shortfall in the 5-year housing land supply for the development plan area, as we have always considered this to be at odds with the general principle that it is for the decision maker to decide the weight to be given to material considerations in respect of any given application, and whether these outweigh the development plan (as set out in Annex A to Circular 3/2013). While planning authorities are able to approve applications contrary to the development plan where there are material considerations to support that, those decisions should be made on a case by case basis, taking into account all relevant material considerations and using sound planning judgement.

At the same time, whilst we are fully supportive of a plan led system, the current pandemic has demonstrated the importance of the planning system being able to be flexible and to respond to sometimes rapidly changing social and economic circumstances. This includes, for example, a decline in demand for employment land and office space, in addition to which the future of many hospitality and leisure developments is uncertain, and recent changes in where and how people shop have been exacerbated. In our experience however developments which seek to respond to these changes with proposals to re-purpose underused sites currently face an uphill struggle to establish the principle of the proposed alternative use in the face of development plan policies which look for the existing use to be retained.  Further, the current presumption in favour of sustainable development has been of little help in these situations if the development plan is ostensibly up to date in all other respects (and this of course also raises concerns about the 10-year plan timescale proposed under the new Planning Act!). As such, we would like to see further changes to SPP alongside the removal of the presumption to provide more support for changes of use in situations where there is no longer demand for an existing use.

For example, whilst paragraph 103 of SPP encourages planning authorities to consider reallocating underused business sites, that principle could equally be applied to provisions on development management, and not just to business sites. This would make it clear that, where an existing site is underused, planning applications for alternative uses should be considered positively.

Alternatively, the same approach could be taken to the assessment of proposals for underused sites as that which is proposed for circumstances in which there is a shortfall in housing land (of which we are also supportive), with SPP making it clear that the underuse of an existing site constitutes a relevant material consideration and that, while the weight to be afforded to that is a matter for the decision maker, the contribution of the proposal to addressing the underuse should be taken into account to inform this judgement. Such an approach would be consistent with paragraph 40 of SPP, which states that the re-use or redevelopment of brownfield land should be considered before new development takes place on greenfield sites, and would still be consistent with the plan led system. 

The prioritisation of brownfield land for development would also address concerns expressed by opponents to the proposed removal of the presumption with regards to the impact that this might have on the delivery of housing, ensuring that one malady is not replaced by another. Indeed, it has the potential to help secure the delivery of more housing and, importantly, to do so in more sustainable locations than the current presumption does, while also making more of a contribution to the sustainability of our towns and cities as a whole. At the same time, the removal of the presumption will mean that there is greater clarity and consistency in how those decisions are made, with this applying to all types of development proposals, not just housing. As is recognised in the consultation on the proposed changes to SPP, there are an increasing number of planning authorities where the local development plan is out of date (or soon will be) and, as a result of changing economic and social circumstances, each of these will have a wide range of development needs that were not anticipated when the development plan was prepared and adopted. This includes, for example, demand for changes of use from Class 1 to Class 3, or the change of use of employment land to housing, leisure, retail or other uses. Ideally, we would like to see further amendments to SPP to more explicitly address such changing circumstances but, in the absence of such amendments being made, the existing policy principles as listed above do require decisions to respond to economic issues and make efficient use of existing capacities of land. These principles should then be applied to support development needs which were not anticipated when current development plans were prepared and adopted, rather than the presumption.

We know that there are a diverse range of views on the proposed removal of the presumption and it is important that any changes which are ultimately made to SPP are not a knee jerk reaction to current circumstances but will be effective in delivering high quality places in years to come. We await the outcome of the consultation with interest.

Meantime, to find out how we can help with any aspect of the planning process, please visit our website or email us at info@auroraplanning.co.uk. Or, if you would like to see our other blogs or sign up for email updates, please click here.

Thanks for reading!

Pippa and Maggie

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