Harold Wilson is quoted as saying that a week is a long time in politics. And, for planners, the weeks since we issued our last Bulletin have seen more political changes than most: the end of the Bute House Agreement; a new First Minister; a new Minister responsible for planning (now Ivan McKee, Minister for Public Finance); and the announcement that a general election will take place on 4 July. But, throughout this all, planning doesn’t stop. So, here’s our round up of what’s been happening over the last quarter in the world of planning at a national level, and in the key sectors in which we operate….
National Planning Framework 4 (NPF4) – at the time of writing our March Bulletin, we were awaiting the outcome of the challenge to the Scottish Ministers’ decision to refuse planning permission for a residential development on an unallocated site at Mossend in West Lothian on the grounds that it was contrary to Policy 16 (Quality homes) of NPF4 in terms of the circumstances in which proposals for new homes on land not allocated in the Local Development Plan (LDP) will be supported (PPA-400-2147). Those circumstances include where the delivery of sites is happening earlier than identified in the deliverable housing land pipeline, with the appellants having argued that those provisions were not applicable since a new style LDP had not been adopted, and so there was no deliverable housing land pipeline, and that there was a significant shortfall in the housing land supply in the current LDP. However, in May, the Inner House of the Court of Session dismissed that challenge ([2024] CSIH 11), confirming that the operation of Policy 16 is not contingent on new style LDPs being put in place first, and that the words of the Policy should be understood as they are stated, per long established principles with regards to interpretation of policy requirements. This follows similar decisions on the interpretation of other NPF4 policies (see, for example, Tesco Stores Limited v Perth and Kinross Council ([2024] CSOH 46), and Wildcat Haven’s challenge to the grant of consent for Clashindarroch (II) wind farm ([2024] CSOH 10)), which also confirm that NPF4 policies must be interpreted objectively, and not in a peculiarly legalistic manner. This then should be the approach now taken to interpreting and applying all NPF4 policies. But, with NPF4 still bedding in, this may not be the last time that disputes about what this means in practice end up in court, and we will be watching out for any further cases with interest.
Scottish Government Guidance – meanwhile, the Scottish Government is continuing to progress a number of actions to support the delivery of NPF4, as well as the implementation of ongoing planning reforms, including through the publication of:
- Scottish Government Planning Guidance: Local living and 20 minute neighbourhoods, which supports the implementation of Policy 14 of NPF4, and provides a range of case studies illustrating the delivery of local living across a variety of scales, contexts and geographic locations. The Guidance recognises that delivering local living will often be part of an incremental and collaborative approach, with planning required to work closely with other services and stakeholders, but that this will ultimately result in improved liveability, long-term wellbeing and resilience; and
- Chief Planning Officers Guidance, which sets out the new statutory requirement for local authorities to appoint a chief planning officer (this having come into force on 1 April 2024). The Guidance provides clarity on the role and responsibilities for planning authorities to consider when making such appointments, with the intention being that the role will help to strengthen leadership on planning and increase corporate recognition of the importance and positive influence of planning within planning authorities, all of which we very much welcome.
Infrastructure levy for Scotland – Discussion Paper – alongside issuing new guidance, the Scottish Government continues to consult on other changes to the planning system, including:
- in May, publishing a discussion paper on a new infrastructure levy. The Planning (Scotland) Act 2019 provides for the introduction of such a levy, payable to a local authority on development in that local authority’s area, to be spent on the provision of infrastructure, but with those powers to lapse if regulations establishing the levy are not made by July 2026. The Programme for Government 2023-26 therefore committed to implementing those regulations by Spring 2026 and the discussion paper puts forward proposed approaches and points for discussion (including, for example, that the levy would be in addition to existing section 75 and other obligations, how the levy would be calculated, the types of development that should pay the levy, when it should be calculated and paid, and what it should be spent on). The discussion paper is available here, with the deadline for discussions with the Scottish Government, or submission of any comments on the discussion points being 30 September 2024.
- in April, publishing the results of the consultation on mandatory training on planning for elected members, with varying views expressed on who should undertake the training, and what kinds of decisions should be made by those who had not undertaken training, but a greater consensus on what the training should cover (a plan led system, the planning application process, decision making, the role of elected members) and that elected members should be required to have passed a test before being allowed to undertake a planning decision. It will be interesting to see what is ultimately required for elected members, and what impact that has on the quality of decision making.
Net zero targets – in our March Bulletin, we noted that a study published earlier this year suggests that UK wide targets to increase the amount of electricity generated from solar are not likely to be met. Subsequently, in April this year, it was announced that the Scottish Government’s target to cut 1990 levels of carbon emissions by 75% by 2030 was to be scrapped. In the context of NPF4 putting the global climate crisis at the heart of its vision for a future Scotland, there are questions about what this means for the delivery of development needed to address that, and we can but hope that the 2030 target’s downfall serves to highlight the need for more support for projects of this nature to ensure that Scotland’s 2045 net zero target doesn’t succumb to the same fate.
Permitted development rights – with (hopefully) some sunnier days ahead of us, it seems a pertinent time for new permitted development rights for rooftop solar panels to come into force, along with other new rights intended to address climate challenges. Specifically, as of 24 May 2024, the new rights:
- level the playing field between domestic and non-domestic properties when it comes to the installation of solar panels, allowing for these to be installed on all buildings (other than listed buildings or buildings within World Heritage Sites, and subject to restrictions in the case of buildings in conservation areas), with previous limits on the power output of panels installed on business premises having been lifted; and
- make it easier for people living in conservation areas to upgrade or replace windows, although it will still be necessary to apply to the planning authority for a determination as to whether their prior approval is necessary before carrying out any works.
Notable planning application – also on the subject of development to address climate change, but in the context of those for which a planning application is needed, it is exciting to see some very ambitious projects gaining consent this quarter, including:
- the Dundee Eden Project, which we have been following the progress of since early 2022 (see our March 2022 Spotlights), and which was granted planning permission this month. Designed as a beacon for regeneration and green tourism, this will combine exhibits, performance, learning, play, immersive experiences, world-class horticulture, live music, art, and food, beverage and retail spaces, spread across three venues on the site. We can’t wait to see this take shape, and to visit once it opens.
- the world’s biggest floating wind farm, which is to be sited near Peterhead and is scheduled to begin operation in 2029, having now got consent for both the onshore and offshore elements. It is estimated that this will save around one million tonnes of carbon each year.
R (Finch) v Surrey County Council [2024] UKSC 20 – perhaps most significantly in terms of the climate impacts of development, earlier this month, the Supreme Court issued its decision in R (Finch) v Surrey County Council, ruling that the grant of planning permission for oil extraction in Surrey was unlawful for failing to assess the ‘downstream’ greenhouse gas emissions from the ultimate use of that oil once refined. The key question in this case was the correct interpretation of the Environmental Impact Assessment (EIA) Regulations; specifically, the requirement to assess both “direct and indirect significant effects of a project” on the climate, with this previously having been interpreted as including only emissions associated with the extraction process itself. However, the majority decision of the Court held that there was a sufficiently strong causal connection between the extraction of the oil and the emissions produced by the ultimate use of that oil once refined to require those emissions to also be assessed as part of “the effects of a project”, rendering it unlawful for planning permission to have been granted without having done so. This is likely to have a significant impact on how other such projects are now assessed, albeit that of course remains to be seen, as does its potential implications for non-oil projects where there may be similar causal effects.
Planning Skills Fund – in a very positive initiative led and managed by the British Chamber of Commerce, a new five-year industry programme aimed at increasing skills and capacity in local planning authorities across the UK was announced in May, with the UK Government, in the Spring budget, committing to match £3m against the programme fund. The scheme will fund individuals to gain an RTPI-accredited degree or post graduate qualification in planning in return for them working in a local planning authority department for at least two years, ensuring that the knowledge and skills gained are directly applied to benefit the community. The Fund will be delivered by the RTPI and launched in 2025.
On us – this month, we are delighted to have celebrated having been in business for 7 years! Something that we of course couldn’t have done without all the great clients and partners that we have worked with along the way, so this is also a celebration of you. We are very grateful for all the support received over the years, and are looking forward to what the future brings…
We were also delighted that the Aurora Borealis decided to put on a show over our hometown of Aberdeen just shortly before our birthday to celebrate (as seen in this month’s banner photo, taken from our Director Maggie’s garden!).
Meantime, to find out how we can help with any renewable energy infrastructure or emerging technology related developments, or if you are a charity or community group looking for assistance, then please visit our website or email us at info@auroraplanning.co.uk. Or, if you would like to sign up for email updates, please click here.
Thanks for reading!
Pippa and Maggie
