Planning: NPF4 – an emerging housing issue

My last article (Journal, January 2023, 29) anticipated that National Planning Framework 4 would be approved by the Scottish Parliament and then adopted by ministers and published as part of the development plan for all planning decisions across Scotland. That approval occurred on 11 January 2023 with ministerial adoption and publication taking place on 13 February.

Landmark policy

NPF4 is a truly landmark planning policy document, containing 33 “national policies” and heralding some major changes in direction that will affect all new development. At its heart are key policies designed to tackle the global climate and nature crisis.

Planning law requires that applications for planning permission be decided in accordance with the “development plan”. For the first time, NPF4 forms part of the development plan.
The big point here is that when we refer to the “development plan” this will mean both (1) NPF4 and (2) the relevant local development plan (“LDP”). 

NPF4 has superseded both NPF3 and Scottish Planning Policy 2014 (“SPP”), which are treated as withdrawn. The Scottish Government has brought into force changes to the Town and Country Planning (Scotland) Act 1997 to give effect to NPF4; through these, strategic development plans and associated supplementary guidance cease to have effect.

Since 13 February, all planning assessments, whether for applications before planning authorities or at appeal, must address this important requirement as matter of law and policy – even applications at “minded to grant” status and subject to completion of a planning obligation (s 75 or s 69 agreement), which means that as matter of planning law they will need to be assessed against NPF4.

National development

NPF4 identifies 18 types of “national development”, including renewable energy projects over 50MW, high speed rail, and developments at Edinburgh and Dundee waterfronts. For these, the “needs” case is considered to be established but detailed assessments will still be required along with permission or consent.

Incompatibility with LDPs

In the event of incompatibility between a provision of NPF4 and an LDP, whichever is the later in date is to prevail. How NPF4 and the LDP are to fit together for confident and rational decision making will remain an issue. Planning assessments for proposals are likely to become more complex, with a potential need for further expert reports to address increased policy requirements.

The Chief Planner has published guidance on transitional arrangements in a letter dated 8 February 2023. This indicates that in applying NPF4, it must be read as a whole (it is 160 pages), and that in interpreting NPF4 and LDPs conflicts are to be expected. “Incompatible” policies are considered to be ones that “contradict” or “conflict”.

NPF 4 policies

Given its sustainability theme, NPF4 should provide significant opportunities for the renewables sector under Policy 11 – Energy. Industry bodies have described the new regime as one of the most supportive planning regimes for renewables in Europe.

Policy 3 – Biodiversity applies to all new development and requires “enhancement” of biodiversity. This is a potentially watershed moment for the assessment of projects; it may cause compliance difficulties for urban projects where the scope for enhancement may be
very limited.

Policy 16 – Quality Homes is a pivotal policy, representing potentially one of the biggest changes in approach. Pre-NPF4, LDPs provided for a five year supply of effective housing land. Housing shortfalls indicated that an LDP was out of date, which frequently allowed developers at appeal to obtain planning permission through the “presumption” in favour of sustainability and the application of what became known as the “tilted balance” in favour of development. This “relief valve” allowing non-allocated housing sites to be supported has been removed. 

The practical implication has been causing significant concern in the housing industry, with debate focused on the true meaning of Policy 16(f), which only allows non-allocated housing sites to be supported through a restricted exceptions sub-policy. Essentially that is where:

• the delivery of sites is happening earlier than identified in the deliverable housing pipeline; or
• the proposal is for rural homes; or
• it is small scale within an existing settlement; or
• it is for less than 50 affordable homes and part of a local authority supported affordable housing plan.

The net effect of this may mean that it will be very difficult for housing sites not allocated in an LDP to be consented, as NPF4 (as the later expression of policy) will prevail. This follows a strict “plan-led” approach for new housing. That is what the Chief Planner’s letter sets out. The current legal debate questions that approach and centres on whether the “LDP” referred to in Policy 16(f) is not the current LDPs of planning authorities but the new style LDPs to be promoted after the adoption of NPF4. If the correct interpretation is that Policy 16(f) only applies to post-NPF4 LDPs, this may in certain circumstances disapply its exceptions policy, although a difficulty arises because the “tilted balance” that might otherwise apply owes its existence to the SPP, which was withdrawn on 13 February. The outcome of this complex debate may well have to be settled in the Court of Session.