Scottish ministers are proposing to introduce a new presumption in planning in favour of "development that contributes to sustainable development"

On 28 October 2013 the Scottish Government embarked on a new consultation to replace the principal policies on sustainable economic growth and sustainable development in the draft Scottish Planning Policy (SPP) with a principal policy on “sustainability and planning”, which will include a “presumption” in favour of “development that contributes to sustainable development”.

This consultation ended on 16 December 2013, and there will now be a delay in the publication of the new SPP and National Planning Framework until June 2014.

The purpose of this apparent policy shift towards a presumption is to unlock opportunities for sustainable development by focusing on what is important in planning decision-making. Understanding the potential implications of that is important for all stakeholders.

This proposed presumption aligns reasonably closely with England & Wales (where their National Planning Framework (NPF) imposes a similar presumption), but there are potentially some important differences in policy direction, and inevitably there will be a debate as to whether this presumption signals an increase or decrease in the relative importance of economic and environmental factors.

The presumption means that the “planning system should contribute to economically, environmentally and socially sustainable places by enabling development that balances the costs and benefits of a proposal over the longer term”. It is made clear that the aim is to achieve the right development in the right place, not to allow development at any cost. Development plans will be required to reflect the presumption; this will be an important consideration for plans now being prepared or under review.

What it involves

Section 3D of the Town and Country Planning (Scotland) Act 1997 requires the functions of Scottish ministers relating to preparation of the (Scottish) National Planning Framework to be exercised with the objective of contributing to “sustainable development”. In construing what this means, regard may be had to guidance issued under s 3E of the Act. The consultation makes it clear that the new policy is intended to be this guidance.

Where the development plan is out of date or does not contain policies relevant to the proposals in question, the policy presumption will apply. It is a rebuttable presumption which requires that there are no unacceptable impacts that would clearly outweigh the benefits when assessed against the SPP.

The central policy principle is that “Planning should enable development that creates sustainable places across Scotland”. This overarching principle is guided by the following principles:

  • Due weight to economic benefit

  • Responding to economic and financial conditions

  • Efficient use of land, buildings and infrastructure

  • Delivery of infrastructure

  • Supporting climate change mitigation

  • Protecting cultural heritage

  • Protecting, enhancing and promoting access to natural heritage

  • Waste reduction

  • Regard to strategy for sustainable land use

  • Avoiding overdevelopment

  • Improving health and wellbeing.

Planning decisions frequently involve assessing and balancing competing factors. The presumption does not appear to weight one particular factor above another. It is important to observe that in the draft policies this consultation draft is intended to replace, reference was made to “significant” as opposed to “due weight” being given to economic benefit.

“Sustainable development” is defined as “development which meets the needs of the present without compromising the ability of future generations to meet their own needs” (“Bruntland” definition).

“Sustainable economic growth” is defined as “building a dynamic and growing economy that will provide prosperity and opportunities for all, while ensuring that future generations can enjoy a better quality of life too” (response to parliamentary question S4W-10994).

Cross-border comparison

It is interesting to compare the proposed Scottish presumption with that in the English & Welsh National Planning Framework. That NPF expresses its presumption as a “golden thread” that runs through both plan-making and decision-taking. While it also adheres to the Bruntland definition, it states that there are three dimensions to sustainable development:

An economic role: contributing to a strong responsive economy by ensuring sufficient land of the right type is available in the right place at the right time to support growth and innovation.

A social role: supporting strong, vibrant and healthy communities by providing the supply of housing required to meet the needs of the present and future generations and by creating a high-quality environment.

An environmental role: contributing to protecting and enhancing our natural built and historic environment, and mitigating and adapting to climate change, including moving to a low-carbon economy.

The English & Welsh NPF has been in place since 2012. It has been frequently used by developers to obtain planning permission on greenfield sites for housing where there was a demonstrable shortage of supply.

The crux of the matter is how “sustainable development” is interpreted by decision-makers when the policy is applied. It is premature to make any predictions. The Scottish Government appears to be seeking to unpack and implement the presumption in favour of “sustainable development” somewhat differently from England & Wales (under the NPF). If retained, and that seems likely, the presumption clearly will quickly become a central feature of development plans and planning decision-making.

The Author
Alastair McKie, partner, Anderson Strathern LLP
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