Another Instalment of the Never-Ending Story

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Planning Democracy work with many different groups and communities throughout Scotland, some of these relationships have lasted for years. At our 2019 conference, Kilmacolm residents presented their already long running battle to save their greenspaces from the volume housebuilding that they fear will blight their village and community. Below is an update.

As we predicted in our previous article last year , the West of Quarry Drive (WOQD) application, has come back to life with a vengeance.

Having failed to persuade Inverclyde Councillors to overturn the recommendation of the planning board to grant planning permission for the site, The Kilmacolm Residents Association (KRA) then, in June 2021, lobbied Scottish Ministers to “call in” the application for their own decision. This Ministers did in July 2021 on the basis that “the case raises issues of national significance with regard to the interpretation and application of Scottish Planning Policy, and in view of Inverclyde Council’s interest in the proposed development, to allow further scrutiny of the reasons for proposing to approve it as a significant departure from the development plan”.

 A DPEA Reporter was appointed to examine the application and to make recommendations to Ministers. Ministers received these at the end of 2021 and, on May 12th, 2022, issued a Notice of Intention. This stated that Ministers were minded to accept the Reporter’s recommendation that the application be approved subject to the applicant and Inverclyde Council agreeing appropriate conditions.

The DPEA Report was made public at the same time as the Notice of Intention and made interesting and concerning reading. On the positive side (for KRA), the Reporter took the view that there was no need for Inverclyde Council to remedy a notional[1] housing shortfall in the Inverclyde part of the Renfrewshire sub-Housing Market Area [SHMA] (which includes the villages of Kilmacolm and Quarriers) because it was clear that there was an ample supply of housing land across the Renfrewshire SHMA as a whole.

The applicants had argued that a recent case in the Court of Session, West Dunbartonshire Council against The Scottish Ministers and Barratt Homes West Scotland [2021] CSIH 49 XA76/20, had set a precedent that every part of an SHMA that spanned more than one Local Authority Area and for which a notional five-year housing land requirement could be inferred must have its own specific effective supply of housing land. The Reporter agreed with KRA’s contention that the facts of the West Dunbartonshire situation differed materially from the WOQD one and did not provide an applicable precedent.

More disturbingly, however, the Reporter concluded that there was a shortfall of effective housing land in the Inverclyde Council area that could be alleviated by approval of the WOQD application.

In reaching this conclusion, the Reporter used the so-called compound or residual method of calculating the five-year HLR and disregarded any effective housing land that was not programmed for completion within the following five years[2]. For those who wish to understand the implications of these choices in more detail, we have a separate article. Suffice it to say here that the choices made were the most stringent possible. Furthermore, they varied from the most recently published views of Scottish Ministers. They were also at variance with the version of Scottish Planning Policy that was in force at the time that Inverclyde Council approved the application.

Ministers had sought to amend Scottish Planning Policy and did, in fact, introduce changes in December 2020. These changes were subsequently found by the Court of Session to be unlawful and were quashed because Ministers had not consulted adequately before implementing them. One of the proposed changes to SPP was that the average method of calculating the five-year HLR should be used. Had the Reporter adopted the average method he could not have found that there was “a shortfall of sufficient scale for it to be reasonable and necessary to assess the current proposal against the criteria in Clydeplan policy 8” even taking the very narrowest view of the effective land supply. Curiously, Ministers state “there is a shortfall in the housing land supply (whichever method is used to calculate the five year target)” (our underlining) which is not a view expressed by the Reporter or supported by any of the calculations discussed by him.

In a consultation document issued in July 2020, Scottish Ministers had proposed altering paragraph 123 of SPP to make it clear that the effective land supply should be used for the purposes of determining whether there was a sufficiency of land to meet the five-year HLR. Specifically, “Housing sites should not be excluded from the effective housing land supply solely due to programming assumptions included in the Housing Land Audit”. Although this wording was not included in the finalised amendments it should, in any case, have been superfluous because the unmodified paragraph 123 is perfectly clear that the duty on planning authorities is “…to ensure a generous supply of land for house building is maintained and there is always enough effective land for at least 5 years. The definition of the effective housing land supply is set out in the glossary to this SPP.”  The glossary definition is “The part of the established housing land supply which is free or expected to be free of development constraints in the period under consideration and will therefore be available for the construction of housing.”[3] The requirement, therefore, is that there is sufficient land that is available for development during the period and this may be quite different to the amount of land that is programmed to be developed during the following five years. The latter will depend not only on the availability of land but on expected demand and developer intentions.

A final matter of concern with Ministers’ being minded to approve this application on the grounds that they cite is that adding housing land in Kilmacolm, while potentially addressing the notional shortfall in the Inverclyde Council area, could have negative connotations for the Renfrewshire SHMA which is already well supplied and where additional green belt housing land could prevent the development of brownfield sites. A more logical and less damaging response to the presumed shortfall in the Inverclyde Council area would be to add further housing land in the Inverclyde Housing Market area (i.e. that part of the Inverclyde Council Area that does not fall into the Renfrewshire SHMA).

At KRA’s request, Neil Bibby MSP has written to ask the Minister for Public Finance, Planning and Community Wealth. why Ministers have changed their views on the appropriate methodologies for calculating the effective land supply and the five-year Housing Land Requirement since July 2020. It is hoped that this and other pressures will cause Ministers to re-consider their intention to approve this application. Failing this, there may be grounds for seeking a judicial review of a decision to approve.

The story hasn’t ended yet.

[1] We refer to it as a notional housing shortfall because the relevant Strategic Development Plan, Clydeplan 2, does not identify an HLR for this part of the Inverclyde Council area although such a requirement may be inferred.

[2] The Reporter rejected as not “realistic” KRA’s contention that the whole of the effective land supply was available to meet the HLR and should be considered.

[3] The criteria for determining whether a site is effective are set out in more detail in a Planning Advice Note PAN 2/2010

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