The petitions by Graham’s the Family Dairy (property) Limited and Mactaggart and Mickel Homes Limited and Elan Homes Scotland Limited challenged the Scottish ministers’ decision to amend the Scottish Planning Policy (SPP) last year, and to publish an accompanying planning advice note (PAN 1/2020). 

In the previous year, two very significant cases, Gladman Developments Limited v Scottish Ministers [2020] CSIH 28 (Gladman 2) and Mactaggart and Mickel Homes Limited v Inverclyde Council and Scottish Ministers [2020] CSIH 44 (Inverclyde), had been decided by the Inner House against the Scottish ministers: these cases concerned the correct application of the presumption in favour of “development contributing to sustainable development” contained in paragraph 33 of the SPP (the so-called ‘tilted balance’) in cases where there is a shortfall in the 5-year housing land supply.

Briefly, in Gladman 2, the court held that the tilted balance kicked in when there is a shortfall in the 5-year housing land supply in a local authority area, without the need for a separate initial examination of whether a proposed housing project constitutes “sustainable development”. In Inverclyde, the court held that a calculation of the 5-year housing land supply in a local authority area which takes account of previous under-delivery of housing will usually be the most appropriate method of analysis. This had the effect of making it more likely that a shortfall in the 5-year housing land supply would be found to exist.

The Scottish ministers’ stance was that these decisions did not reflect the original intent behind paragraph 33 of SPP. Rather than appeal the Inner House decisions to the Supreme Court, the Scottish ministers decided to alter SPP to more accurately reflect their policy intentions.

To that end, they consulted upon, and in due course promulgated, a series of changes to SPP which had the effect of removing the tilted balance in situations where there is a shortfall of housing land. At the same time, PAN 1/2020 was published, which created a strong preference for calculation of the 5-year housing land supply without reference to previous under-supply. It was against the decision to publish these changes that Graham’s The Family Dairy, Mactaggart and Mickel Homes, and Elan Homes Scotland petitioned for judicial review.

On 21 July, Lord Clark held that the consultation process which preceded the change to SPP and the publication of PAN 1/2020 had been flawed. The consultees were not put into a position properly to consider and respond to the consultation request: they were not told enough, and in sufficiently clear terms, to enable an intelligent response. The consultation was materially misleading (albeit, Lord Clark held, unintentionally), in its description of the proposed changes as ‘technical and procedural’, and in its assessment of the effect of the changes on future planning decisions. Accordingly, Lord Clark found that the consultation process was so unfair as to be unlawful, and granted decree of reduction of the amendments to SPP, and of PAN 1/2020.

You can read the full decision here: Graham’s The Family Dairy and Others in the Petition of Elan Homes Scotland Limited For Judicial Review [2021] CSOH 74.