23 January, 2023

West Lothian Council v Scottish Ministers [2023] CSIH 3


This planning appeal concerned a refusal by West Lothian Council (“Council”) for planning permission to construct around 104 homes on a greenfield site at Hen’s Nest Road, East Whitburn. Ogilvie Homes (“Developers”) appealed the decision to the Scottish Ministers (“Ministers”), who appointed a Reporter. The Reporter granted planning permission. The Council appealed the reporter’s decision to the Inner House.


Key Issue

The key issue in dispute was whether there was a shortfall in the “5 year effective housing land supply”. This is a test which acts as a proxy to measure whether sufficient land is being made available for development to meet the Council’s housebuilding targets. The Council is obliged to maintain a minimum of a 5 year effective housing land supply at all times. If there is a shortfall, then policies in the local development plan (“LDP”) and the strategic development plan (“SESplan”) allow for additional greenfield sites to be released for development providing certain criteria are met. Additionally, in terms of Scottish Planning Policy (“SPP”), there is a presumption in favour of sustainable development which becomes a significant material consideration where there is such a shortfall. The greater the shortfall, the more that any adverse impacts would have to outweigh the benefits. This is called applying the ‘tilted balance’.

It was not disputed that the criteria in the LDP and SESplan policies were met. It was not disputed that, if engaged, the tilted balance did not favour development.

However, the Council argued that there was no shortfall and the Reporter had erred in law in arriving at the conclusion that there was. The Council were critical of the method used to calculate the shortfall. The Council argued that an “average method” be used, which involved taking the total housing land requirement over the life of the current plan (19,811), dividing that figure by the number of years (15) and multiplying the result by 5 years. This resulted in a requirement of 6,605 units, which was less than the projected supply of 8,157 units. The average method, however, leaves out of account past under-delivery, but projected that there was over 6 years’ worth of supply in West Lothian.

The Developer had argued that a “residual method” be used which, on the contrary, takes into account any prior under-delivery against housing targets in previous years. Using the residual method there was less than 3 years’ worth of supply. There was, they argued, therefore a significant shortfall in 5 year effective housing land supply.

Reporter’s Decision

Rather than simply accept either the Council or the Developers’ calculation, the Reporter considered he could apply a simpler method to determine whether there was a shortfall. He looked at the number of houses that were targeted to be built by the end of the plan in 2024 (18,010) and estimated that the Council would be at least 4,000 units short. There was no established target beyond 2024 to do a conventional 5 year calculation. The Reporter concluded there was a significant shortfall, and then cross-checked this conclusion was another recent decision in West Lothian at Mossend which proceeded on very similar figures and came to the same result.

Court’s Decision

The Lord President gave the opinion for the First Division, which also included Lords Woolman and Pentland. The Lord President emphasised that reporters were not lawyers and neither, primarily, was their audience. It was desirable for their reasoning to be “intelligible, yet succinct”. This Reporter’s decision readily met that standard. The Reporter asked himself the right question, was aware of the alternative methods of calculation and the recent history of changes and court challenges to planning policy in this area.

The Court was satisfied that there was no basis to interfere with the Reporter’s decision. The answer to the question of whether there is a shortfall is a matter of planning judgement for the Reporter to decide. The Court will only intervene if there were no material before the Reporter to support his conclusion. In this case there was such material.

The Court emphasised that the development plan policies that allow for exceptional release of land when a shortfall is demonstrated are a means to an end and not an end in themselves: “That end is the fulfilment of the overall purpose of a development plan, which is to ensure that the housing need in the area is met”.

It was clear that the Council had fallen far behind its targets. The Reporter was dealing with a situation where there was no target established for 5 years’ time. In the circumstances, the Reporter’s approach was “realistic and accorded with common sense”. The Court was reassured by the fact that the Reporter had cross-checking his conclusions with the decision in Mossend. Ultimately the Court declared that the Reporter’s decision was “entirely coherent”.

West Lothian Council: Douglas Armstrong KC

Scottish Ministers: Michael Way

Ogilvie Homes: AO Sutherland (sol ad)

Opinion of First Division can be found here.

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