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HFS Senior Planning Advisor Joe Larner examines the recent Court of Session decision to quash a planning appeal decision made by the Scottish Ministers. The decision highlights the importance of taking housing shortfalls seriously when making planning decisions.

The legal challenge by Graham’s Dairy and Mactaggart Mickel was successful resulting in the Scottish Government’s (SG) Decision, refusing planning permission for 600 homes near Bridge of Allan, Stirling (dated 28 June 2018), being quashed.

The decision is fairly damning of the SG’s failure to review the reasons for the decision set out by the Reporter in light of the fact that the proposed Local Development Plan (LDP) did not meet the housing land requirement. The Reporter had reasoned that it could be expected that the LDP would do so when writing his report (released 1 June 2017). The Opinion of the court explained it as follows:  

“The difference, and it was an important one to the reporter, was that at the time of the report it was anticipated that the shortage would soon be resolved. At the time of the decision [by the SG], there was no resolution in sight.”
(para. 32). The SG therefore failed to take into account a “relevant material consideration” at the time of their decision. 

In a frank review of the SG approach the opinion goes on to state that:

"The respondents’ [Scottish Government’s] wholescale adoption of the reporter’s reasoning betrays a somewhat careless approach to decision making or at least the provision of adequate reasons; since it adopts a ground for refusing permission (prematurity) which was, on any view, no longer valid.”

It also criticises the SG for failing to re consult parties to the appeal in light of this change in circumstance.

There is a lot to digest in the decision but I think the below is helpful on the implications for making a decision where a 5 year supply is absent: 

“In particular, they must make it clear whether and how, in accordance with SPP (paras 33 and 125), they regarded the shortage as a “significant material consideration” (cf the conclusion and recommendation in the submission to the respondents and the proposed press release) and the extent to which they regarded the green belt as “significantly and demonstrably” outweighing or otherwise the benefits of the development.” (Emphasis added in the Opinion). (para. 36).

It is hoped that this ruling will serve as an important reminder to Local Authorities, Reporters and Scottish Ministers that allowing the adoption of LDPs which fail to allocate sufficient land to meet the local housing requirement is not without consequence.

Published 25 January 2019

 

MEETING HOUSING NEED IS HARD. CHANGING PLANNING APPEAL RIGHTS WOULD MAKE IT IMPOSSIBLE

By HFS Director of Planning Tammy Swift-Adams

As MSPs return to Holyrood from October Recess, the Local Government and Communities Committee will continue interrogating the Planning Bill.


They’ve already made some changes, with opposition parties aligning against the Scottish Government’s thinking on development plans.

They believe, for example, that the Minister’s desire to write a plan for Scotland must come with a willingness to set home building targets. We believe that’s essential in achieving a whole-system response to the housing crisis.

Less promisingly, only the Conservatives have grasped the fact that a development plan written partly by the Minister and partly by the council must work as a whole. Legislation shouldn’t say the local and national components can be at odds, but that is where development plans have been left (at least until January 2019 when the Bill will be debated by full Parliament).

The committee is turning now to other things, not least the emotive topic of planning appeals.

There has been much talk of community or ‘third party’ appeal rights. Homes for Scotland, home builders and many others are deeply concerned this will sour and stymie a system already punctured with conflict. Already failing to deliver.

Some people suggest another way to ‘equalise’ appeal rights is to remove or restrict the applicant’s right to appeal a refusal.

This too would be catastrophic. Like them or not, applicant appeals are a positive and necessary part of planning. Without them our housing crisis would be even worse. We would lose chances to build, serve and strengthen communities. Our ability to attract and retain investment would suffer.

We can’t afford to miss positive opportunities and, with the Bill stretching local plans to ten years, Scotland will be more reliant on unallocated sites as those plans age. These are the sites most likely to come through an appeal.

Fairness in planning comes from positive process and positive outcomes. It doesn’t hinge on ‘equal’ rights to appeal. Fairness depends on planning fearlessly to deliver what Scotland needs now and for the future. It means more affordable homes, and enough market homes for aspiring home owners and those looking to upsize or downsize as life changes. It means making difficult, forward-looking decisions in the face of real-time opposition.

Should a home builder have to roll-up their plans and leave the area if permission is refused or their proposal isn’t a perfect fit with a complicated and sometimes outdated set of policies? Those who campaigned for a refusal might get short-term satisfaction and relief, but another potentially sustainable development, offering homes that people need, will be lost.

MSPs will also decide whether appeal rights should be linked to plan conformity. This wouldn’t make planning more transparent or support a plan-led system. It would do the opposite. You can’t distinguish ‘good’ from ‘bad’ development just on the basis of site allocations, and gauging compliance with wider policy considerations is no easy task.

Applicant appeals make a vital contribution to housing supply and other development needs, but don’t dominate the system. Only 30% of all applicants refused planning permission choose to appeal. Others go back to the drawing board or give up. Less than 40% of appeals succeed, so only 12% of council refusals are overturned.

In 2017 there were 17 appeals allowed for developments of ten or more homes. 14 were for allocated sites. The others a were a modest affordable housing project and two greenfield developments in areas with a housing land shortfall, both of which were found by Reporters to be plan-compliant. Not one appeal was allowed for a major housing development that wasn’t in line with the plan.

This explains why home builders feel the chance of winning an appeal on an unallocated site is limited and would be non-existent if housing land supplies were maintained.

Together, the three unallocated sites will provide 316 homes. The allocated sites will contribute many hundreds more. Consider this against the fact only 806 additional new homes were built in 2017 compared to the previous year. Without the homes resulting from appeals, housing supply in Scotland would, in all likelihood, be in decline.

Community frustration must be addressed, but changing appeal rights isn’t the answer.  Reform must serve the twin goals of a better community voice in planning and meeting housing need and demand. Inclusive development planning, in short.

It has been good to hear some Party Conference commitments to building more homes. We now need the Planning Bill to keep that mission in sight.

Published 22 October 2018



TAKING OFF THE MASK
By HFS Chief Executive Nicola Barclay

Ten years ago, I stood on the stage at the EICC addressing 850 guests at the Women in Property Dinner. I was Chairman of the Central Scotland branch at the time, and this was my penultimate event before handing the reins over to my vice-chairman.

I was honoured to be able to address the most recent dinner, to give them some of my personal thoughts on my own journey over the intervening decade as well as that of the Women in Property organisation itself. With International Women’s Day coming up, what perfect timing!

Back then, as I nervously made my maiden speech, I would never have believed that I would ever have the confidence to voluntarily deliver the after-dinner speech, nor that I would actually enjoy it!

I spoke about my journey through the housebuilding industry to becoming Chief Executive of Homes for Scotland, and the internal struggle I had with myself to accept that I was good enough to take on the job of leading the organisation tasked with representing such a vital industry. I also talked about the importance of the work Homes for Scotland does and recognised the tremendous efforts of my fabulous team. But my main focus was on my approach to leadership.

I’d been on a couple of training courses about leadership before taking on the role, and I also knew that it would be possible to get advice on all those HR or legal matters that would crop up, but what I’ve discovered since being in post is that you can’t rely on others to tell you what to do.  For me, the only thing you can do is be yourself; trust yourself; and accept that, yes, you will make mistakes but most importantly you will grow and learn from them.

Last month’s dinner had a masquerade theme, which is ironic really because the first thing any leader must do, in my opinion, is take off your mask – don’t hide behind something you’re not – and be your authentic self.

The main influencer on my journey was Sheryl Sandberg, Chief Operating Officer of Facebook, and author of “Lean In”. I encourage most women I meet to read this book! There are so many practical, almost obvious approaches to use in business to help you become more engaged, more connected and more in control of your working life. I love the example of asking questions at a conference. If the speaker says they have time for two more questions, invariably all the women in the room will lower their hands after two questions have been taken – they’re doing what they’re told and have been rewarded all their lives for being ‘good girls’.  Unfortunately, the men in the room didn’t get that memo, so tend to keep their hands up, hopeful that they’ll get the chance to make their point or ask their question. I shared this example with a group of women in housebuilding, and was delighted when a few days later, I saw one of them put it into practice. Given that I was the one on stage looking for questions from the floor, I had to let her ask that third question, didn’t I?!

So, what of my involvement in Women in Property? Is it still as relevant as it was ten years ago when I was Chairman? Absolutely. In fact, even more so. So many women lost their jobs during the recession, and we must encourage them to return and help shape the industry of the future. For young women entering the industry, it provides great opportunities to meet people, develop networking skills, and learn from those who have beaten down that path in front of you.

I will always remember the first networking lunch I attended.

I was terrified. I sat in my car for at least ten minutes trying to summon up the courage to meet this group of women. After all, I had entered the property industry in the full knowledge that it was male dominated. Now I’ve always gotten on well with men and know how to deal with them, for the most part. But a group of professional women? What on earth would I have in common with them? The wonderful thing was, when I finally plucked up the courage to enter, I was greeted with warmth and friendship, and I got on just fine. I realised that I didn’t even know what I was missing: camaraderie, friendship and support.

But Women in Property is about much more than just helping those embarking on their careers. They have just rebranded and want women in the industry to ‘Aspire: Succeed: Inspire’

It is those who can inspire that I really want to reach out to:  those who can provide support and guidance to younger women. The mentoring scheme that Women in Property operates needs more mentors to help, and the organisation needs more senior women to stay engaged and involved so that it can provide a balanced mix of representation at events.

We need the credibility of senior women to influence and shape this industry. A pool of experience gives us the chance to put forward senior women for slots at conferences and panel discussions. We all want diversity on these panels, and are beginning to see more of it, but we must be willing to step up, or ‘Lean In’ you might say, when offered the chance to take the platform.

Only then can we really influence the debate.

Our industry needs women to do this. Our jobs are ultimately all about creating places where people will live and work. How can a process that is influenced and determined by only half the population create a place that suits the whole? Women have a fundamental role to play in this sector and we must be involved from the top to the bottom.

On International Women’s Day, will you pledge to support Women in Property? There are many ways you can help, depending on who you are:

  • If you’re already a member? Think about joining your local committee. It gives you an opportunity to expand your skills, and you can help to shape the diary of events.

For more information, go to www.womeninproperty.org.uk 

Published 8 March 2018


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