Housing Delivery in Scotland: ‘The Mossend Decision’

A recent Court of Session decision in Scotland raises important policy questions around housing land supply.

A crisis necessitates a swift and proactive response. However, after a recent Court of Session decision on housing land supply, it remains to be seen whether Scotland’s planning policy landscape can respond to the growing housing emergency and deliver housing numbers at the scale and speed that is clearly required.

Since February 2024, National Planning Framework (NPF 4) established a new spatial strategy for Scotland alongside a comprehensive set of national planning policies. As well as becoming part of the statutory development plan, NPF 4 introduced a ‘Minimum All-Tenure Housing Land Requirement’ (MATHLR) for each Planning Authority indicating the minimum amount of land, by reference to the number of housing units, to be provided for a 10-year delivery period. This represented a modification to the traditional 5-year housing land supply process which Planning Authorities had historically operated on and framed their local policies around.

In order to allow Local Development Plans (LDPs) to ‘catch up’ with the new national policy framework, associated changes to the Town and Country Planning Act were implemented to ensure that where incompatibility between policies in an LDP and NPF were identified, the policy that was adopted later would prevail. This matter has recently been tested in the Miller Homes Ltd v Scottish Ministers [2024] Court of Session decision which centred on a proposed housing site in Mossend, West Lothian.

Miller Homes had applied to deliver 250 new houses in March 2022, prior to the adoption of NPF 4. The site was not allocated for housing and the proposal was made on the premise that it would contribute to a suspected shortfall in the 5-year housing land supply. The policy framework in the extant West Lothian LDP and associated case law (Gladman Developments Ltd. v Scottish Ministers [2020]) provided a favourable setting in support of such development.

However, by the time the Applicant had appealed on non-determination grounds, NPF 4 and the associated MATHLR was fully adopted. Further to a Ministerial ‘Call-In’, the application was refused on the grounds that it failed to meet NPF 4 policy on new homes on non-allocated land. This despite a lack of a deliverable housing land in the extant LDP pipeline. 

The subsequent Court challenge considered whether the housing land supply position relevant when the application was submitted continued to apply post-NPF 4 and until such time that a new LDP was adopted. Ultimately however, it was concluded that indeed NPF 4 is the prevailing policy in such circumstances and Planning Authorities do not require to await the adoption of a new LDP to rely on national housing policy.

The true impact of the decision will take time to materialise and the outcome will inform a raft of further appeals which were on hold awaiting the ruling. While the policy landscape for housing land remains challenging, opportunities to deliver development in sustainable locations at speed still remain and the importance of an urgent reaction to the mounting pressures on housing land is now even more critical.

To discuss any of the matters discussed above or any other planning matter, please contact the team.