GLADMAN DEVELOPMENTS LTD, APPEAL BY AGAINST THE SCOTTISH MINISTERS AND GLASGOW AND THE CLYDE VALLEY STRATEGIC DEVELOPMENT PLANNING AUTHORITY [2018] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GLADMAN DEVELOPMENTS LTD, APPEAL BY AGAINST THE SCOTTISH MINISTERS AND GLASGOW AND THE CLYDE VALLEY STRATEGIC DEVELOPMENT PLANNING AUTHORITY [2018] ScotCS CSIH_17 (20 March 2018) URL: http://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_17.html Cite as: [2018] ScotCS CSIH_17, [2018] CSIH 17

Respondents: Crawford QC, Burnet; Scottish Government Legal Directorate

[1] This is an appeal against the respondents’ decision, dated 24 July 2017, to approve

the Glasgow and Clyde Valley Strategic Development Plan (the Clydeplan) as modified.

The Clydeplan was published following upon an examination by a reporter. The findings of

his report were adopted by the respondents as their reasoning. The focus of the appeal is on

the sub-sections of chapter 6 (City Region as a Successful, Sustainable Place) which set the

Housing Land Requirement (HLR) across the whole of the plan area.

[2] The figures in the HLR are important to residential developers because, by a

comparison with the annual land audits of sites actually available for development, they will

determine whether the interested parties are complying with the Scottish Planning Policy

(SPP) requirement (para 110) to identify a generous supply of land which will maintain at

least a 5 year supply at all times. A failure to comply would, the appellants maintain,

involve applications for planning permission being determined with less weight being

placed on the Clydeplan and any local development plan and more on the general SPP

[3] The central issues are: whether the reporter’s findings, which led to the

determination of the HLR, had any, or a sufficient, evidential base or conflicted with the

SPP; and whether his decision was one which, having regard to the SPP, was adequately

reasoned. There is a subsidiary point about whether the reporter or the respondents were

misled in relation to the availability of evidence to support the Housing Supply Target

[4] The following acronyms are used, although occasionally the full version is repeated

[5] The National Planning Framework (NPF) is a plan for the long-term spatial

development in Scotland (Town and Country Planning (Scotland) Act 1997, s 3A). It sets out

the Government’s priorities for the next 20 to 30 years. Scottish Planning Policy (SPP) is

intended to assist in the delivery of the NPF’s objectives (para 109). NPF3 (Scotland’s Third

National Planning Framework; June 2014) commits (para 2.5) the Government to a significant

increase in house building, to ensure that housing requirements are met across the country.

More ambitious and imaginative planning is said to be needed to provide a “generous and

effective supply of land for housing in a sustainable way” (ibid para 2.20).

[6] One of the SPP’s stated aims (para 109) is to facilitate new housing development.

Provision for new homes is to be made in areas where: economic development is planned;

there is a need for regeneration; or where it is required to retain the local population. The

“policy principle” (para 110) is that the planning system should:

“identify a generous supply of land for each housing market area ... to support the

achievement of the housing land requirement across all tenures, maintaining at least

[7] The mode of delivery is for local authorities to identify functional housing market

areas; that is geographical areas where the demand for housing is relatively self-contained

(para 111). Planning should be undertaken through joint working by “housing market

partnerships”, involving both housing and planning officials, co-operation between

authorities, and engagement with social landlords, developers and others (para 112).

[8] Under the heading “Development Planning”, the SPP continues:

“113. Plans should be informed by a robust Housing Need and Demand

Assessment (HNDA) prepared in line with the Scottish Government’s HNDA

Guidance. This Assessment provides part of the evidence base to inform both local

housing strategies and development plans ... It should produce results both at the

level of the functional housing market area and at local authority level, and cover All

Tenures. Where the Scottish Government is satisfied that the HNDA is robust and

credible, the approach used will not normally be considered further at a

115. Plans should address the supply of land for all housing. They should set out

the housing supply target (separated into affordable and market sector) for each

functional housing market area, based on evidence from the HNDA. The housing

supply target is a policy view of the number of homes the authority has agreed will

be delivered in each housing market area over the periods of the development plan

and local housing strategy, taking into account wider economic, social and

environmental factors, issues of capacity, resource and deliverability, and other

important requirements ... The target should be reasonable, should properly reflect

the HNDA estimate of housing demand in the market sector, and should be

supported by compelling evidence. The authority’s housing supply target should

116. Within the overall housing supply target, plans should indicate the number

of new homes to be built over the plan period. This figure should be increased by a

margin of 10 to 20% to establish the housing land requirement, in order to ensure

that a generous supply of land for housing is provided. The exact extent of the

margin will depend on local circumstances, but a robust explanation for it should be

118. Strategic Development Plans should set out the housing supply target and

the housing land requirement for the plan area, each local authority area, and each

functional housing market area. They should also state the amount and broad

locations of land which should be allocated in local development plans to meet the

housing land requirement up to year 12 from the expected year of plan approval,

making sure that the requirement for each housing market is met in full. ...”.

[9] The SPP repeats (para 123) the requirement to maintain a “generous supply of land

for house building” through the provision “of enough effective land for at least five years”.

Housing Land Supply (HLS) is to be managed actively, with planning authorities working

with developers to prepare annual housing land audits. Where a shortfall in the 5 year

effective supply occurs, “development plan policies ... and will not be considered up-to-

date” and the presumption in favour of development would become “a significant material

consideration” (paras 125 and 33). This presumption has the potential to override any

constraints produced where land identified in an application for residential development

falls outwith areas earmarked in local development plans (LDPs) (see Hopkins Homes v

Communities Secretary [2017] 1 WLR 1865, Lord Gill at para 77 et seq).

[10] In January 2016 the interested parties published their proposed Clydeplan; the

Strategic Development Plan (SDP) for the Glasgow and Clyde Valley area, covering 8 local

authority areas, viz.: Inverclyde, Renfrewshire and East Renfrewshire, West and East

Dunbartonshire, Glasgow and North and South Lanarkshire. Accompanying the Clydeplan

was a Background Report entitled “Beyond the Housing Need and Demand Assessment”

(HNDA). This was designed (para 1.1) to “describe the translation of the outputs” from an

HNDA completed in May 2015. The translation exercise had been carried out under the

auspices of the Glasgow and Clyde Valley Housing Market Partnership, which consists of

housing and planning officials from each of the 8 authorities. One important matter flagged

up in limine (para 3.3) was that the housing estimates of this HNDA differed significantly

from the previous one (June 2011) as a result of: (i) up to date material from the National

Records of Scotland (NRS) on population and household forecasts; (ii) a different HNDA

Tool, which based its housing need and demand figures on factors including household

formation, income and prices; and (iii) a different approach to “backlog” (existing) need to

reflect new house need only. The differences had resulted in lower estimates of both need

and demand and a different balance between that in the “social and below market” sector

[11] The method adopted by the interested parties in the Background Report was: first, to

collate HNDA estimates from the individual local authority areas; secondly, to adjust them;

thirdly, to produce the Housing Supply Target (HST); fourthly, to add the SPP’s required

generosity quotient (para 116); and, fifthly, to produce the Housing Land Requirement

(HLR). This method reflected a diagrammatic scheme (Diagram 1) set out in the SPP. In

reaching the HNDA figures, the interested parties considered three “demographic

scenarios” predicting future growth. Having regard, inter alia, to material contained in an

economic outlook report, a “Sustained Growth” model, being generally a mid-ground

between High and Low Migration, was chosen. Once each local planning authority’s figures

[12] Second stage adjustments were made to “reflect how in reality the private sector

operates, with home buyers moving house and exercising choice irrespective of local

authority boundaries”. This involved, inter alia, an apportionment of 6,000 units from

Glasgow to surrounding authorities and an overall increase in All-tenure figures. Adjusted

figures submitted by each local authority produced the following totals:

[13] In order to arrive at an HST, guidance is supplied by a Managers Guide. This

stresses (para 9.1) that the HNDA is to provide the evidence upon which the HST will be

based. The HNDA is the starting point, but “policy and practical considerations” are to be

taken into account before reaching a view on the level of housing to be delivered. The

Guide gives eight examples (para 13.4) of factors to be considered in setting realistic totals.

These include: construction capacity; availability of resources; likely pace based on

completion rates; planned demolitions; and renovations. The Background Report took these

[14] The local authorities had each been provided with a template to complete in reaching

the HSTs (see Background Report para 9.1). Each could add or subtract from the stage 2

adjusted figures according to the weight given to the various factors. This exercise

[15] The Background Report stated (para 10.1) that the various factors had resulted in a

“to adjust for the likely availability of resources, a more even spread of the social

sector across the planning periods, positive adjustments to the private sector and a

consequential positive adjustment to the overall all tenure housing supply targets.”

The drop in the social sector had reflected a general transfer of units to the private sector in

anticipation of the latter delivering a significant amount of social housing. The increase in

the private sector was because of a higher anticipated level of delivery, reflecting past

completion rates, and anticipated population and economic growth. It was not thought that

the generosity element should be added to the social HST, given “resource planning

assumptions” (para 11.2). A 10% figure was applied to the private sector “mindful of the

context which includes a generous existing all tenure land supply” (para 11.3). This

[16] It was estimated that the Housing Land Supply figures were respectively: 17,873;

99,735; and 117,608. The private sector element was noted as being 43% above the HST. The

All-tenure figure was higher than that produced by the High Migration scenario (supra)

[17] The proposed Clydeplan stated (para 6.23) that the interested parties were

committed to supporting growth in the housing sector by creating high quality places which

delivered the right type of homes in the right locations. The HLR would enable ambitious,

yet realistic, levels of growth to be planned across the city region. It noted (para 6.27) that

the “recent economic downturn” had impacted on the delivery of new housing.

Nevertheless, in support of its vision and strategy, the Clydeplan aimed to meet the need

and demand for housing in full by setting a policy context which provided for a generous

[18] Under the heading “Assessing housing need and demand in a city region context”,

the Clydeplan recorded (para 6.37) that its long-term strategic planning had been informed

by the HNDA which had provided the evidence base for identifying housing requirements

(para 6.39). The HNDA had been signed off by the Government’s Centre for Housing

Market Analysis (CHMA) as “robust and credible” in May 2015. The Clydeplan continued:

“6.42 The housing estimates produced from the HNDA (2015) are lower than the

 the adoption of a different approach to backlog need to reflect only that

need which requires an additional house which has significantly reduced

 the use of the most up to date National Records of Scotland population

and household projections which reflect recent trends in the economy and

 the use of the CHMA’s HNDA tool which estimates future housing need

and demand based on factors including household formation, income and

6.43 Although the housing estimates are lower than the previous HNDA, the

housing land requirement set out in this Plan, along with continuing additions to the

supply through local development plans and the granting of planning permissions,

will enable Clydeplan to continue to plan for ambitious yet realistic growth.”

[19] In accepting the Sustained Growth model proposed in the Background Report, the

Clydeplan noted that the economic and demographic drivers pointed towards more muted

growth than under the previous SDP (May 2011). Adopting the adjusted housing estimates

set out in the Background Report, the plan took account of both policy and practical

considerations and again followed the Background Report. It produced HST figures for the

period 2012 to 2029 rounded up or down from the Background Report of 100,990 (All-

tenure) with 31,290 in the social sector and 69,700 in the private sector. The proposed

generosity level of 10% was applied to the private sector to produce the HLR, more precisely

described in the Background Report, of 107,960 (31,290 and 76,670).

[20] A number of developers, including the appellants, made representations about, inter

alia: the selection of the “Growth Scenario”; the setting of the HLR; the calculation of the

HLS and the joint action on delivery. These became issues 10 to 13 which were heard by a

reporter (David Liddell) in terms of section 12 of the 1997Act. The reporter recorded the

interested parties’ summary of the representations as including a contention that the

Clydeplan’s selection of the Sustained Growth scenario, rather than the High Migration

scenario, was planning for decline and would artificially constrain economic growth. The

appellants had maintained that this was inconsistent with the Clydeplan’s overall vision.

The HNDA had been based on data from a recessionary period, which would inevitably not

lead to forward thinking. The significant reduction in the backlog was a measure used to

suppress the overall HLR. The approach was reactive to the past, rather than visionary. The

interested parties had replied that the plan was appropriately ambitious and rejected

suggestions that a higher migration scenario ought to have been adopted or that the HNDA

should have been re-run. A rational and evidence based approach had been taken. The

evidence base had come from a variety of reports which had been referred to in the

Background Report. The selection of the Sustained Growth scenario was based on the NRS

[21] The reporter noted (Issue 10, conclusions, para 4) that the Government’s CHMA had

certified the HNDA as “robust and credible”. There was nothing which would justify

examining the HNDA further. The nature of the NRS projections had to be borne in mind

(ibid para 5). They were based on past trends. Inward migration had, over the last 10 years,

been higher on average than previously assumed. The rate of house completions had also

been higher. In relation to the adjustments, the reporter explained that the (rounded up)

HNDA figures had been augmented by 2,870 further private homes, taking into account an

increase in non-effective stock, and a positive adjustment of 414 for Inverclyde, where the

estimated decline in household numbers (at a negative of that figure) had been re-set at zero.

He accepted the relevance of the re-assignment of demand from Glasgow, which had been

[22] On the calculation of the HSTs from the adjusted figures, the reporter acknowledged

(ibid para 11) the calculations in the Background Report, which took into account the likely

available resources and past completion rates in the social sector and population and

economic growth “ambitions” in the private sector. In relation to the decline in the social

“14. I have some difficulty in reconciling the approach taken ... with the stated

desire of meeting all existing social sector need within ... either 5 or 10 years. Nor

have I seen the kind of ‘compelling evidence’ for the adjustments which SPP says is

[23] The reporter recorded (para 23) that he had asked the interested parties “for further

evidence, quantitative if available, on the basis for the specific adjustments made to the HST

for each local authority area”. In fact, he may have asked for “an explanation” rather than

evidence (see response to a request dated 23 September 2016). In any event, he was

informed that no further quantitative evidence was available. The Housing Market

Partnership (see supra) had met over two days to agree the HSTs. They had started with the

adjusted housing estimates and had applied their professional judgment to them. The

interested parties had explained that the templates (supra), which had been used by the

authorities, illustrated the factors which had been taken into account. These had not been

made available nor had there been “detailed evidence” on how, for each local authority, the

final figures had been arrived at from the mix of positive and negative factors.

[24] The reporter was conscious (para 16) of the Government’s all Scotland target of

50,000 new affordable homes over a 5 year period, albeit that that target had been formalised

after the HSTs had been calculated. The developers had pointed to increased figures for the

social sector in the 8 authorities “Strategic Housing Investment Plans” (SHIPs), although

these were intended to be “over-programmed” according to the Government guidance. The

reporter was not persuaded that the figures in the SHIPs provided a sufficiently robust basis

upon which to recommend specific changes to the social sector HST. He accepted that the

plan could be assuming levels of delivery in the social sector which could be less than what

could now, with the additional Government funding, be achieved in the period to 2021/22.

He included additional text to that effect and altered Policy 8 (infra) to make it clear that

local authorities could remedy any shortfalls in the 5 year supply through the grant of

[25] The reporter dealt expressly with the significance of the “All-tenure HST” as follows:

“20. ... the all-tenure target is an important consideration ... Every house built and

subsequently occupied would contribute to meeting housing need and demand. In

setting the HSTs ... a significant proportion of the social sector need was, in effect,

transferred to the private sector target. ... the private sector can ... contribute to

meeting affordable housing need in a number of ways. It would in any event be for

the subsequent LDPs [local development plan] to fix policy on the proportion of

homes on new development sites which are to be for affordable housing ... I am

satisfied that the Plan, subject to the modifications I recommend, would not act to

constrain the provision of such housing should resources and opportunities allow

[26] On the private sector HST, the reporter noted that the HNDA had explained how the

approach to the choice of scenarios in the HNDA had been determined. The reporter had

sympathy (para 25) for the view that the process, through which the HSTs had emerged,

lacked transparency. He would have found more evidence supporting the figures “helpful”.

The material, which he did have, did not amount to “compelling evidence” which the SPP

“25. ... On the other hand, there is perhaps a danger in seeking spuriously precise,

numerical justifications for decisions which inevitably rely on a degree of

[27] The reporter observed (para 26) that the adjustments had taken the private sector

HST to (a rounded down) 69,700, being an increase of about 26% on the adjusted estimate.

The all-tenure HST of (a rounded down) 100,990 constituted a 6% increase. He continued:

“28. Despite my misgivings about the quality of evidence ..., the [interested parties

have] taken into account the factors which SPP says it ought to. For private sector

homes, the increase of 26% from the overall adjusted housing estimate is a significant

one. As required by SPP, this reflects the HNDA estimate – in fact it significantly

[28] The reporter acknowledged the inherent uncertainties in the use of projections. The

interested parties had said that the background research had indicated little sign of

significant economic improvement in the short to medium term. There was a range of views

about what level the HSTs should be set at, based upon the most likely economic future. No

alternative scenario was clearly more likely than that adopted by the interested parties. He

did not consider that there was a fundamental problem with the level of ambition in the

plan. The HNDA had been certified as robust and credible. The SPP stated that

development plans should plan on the basis of the HNDA. The planning authority were

entitled to proceed on the basis of the NRS projections. There was no case for recalculating

“43. The proposed plan is predicated on lower levels of household growth (if not

population growth) than was the case for the current SDP. ... I do not characterise

this as planning for decline. ... the plan is based on adjusted housing estimates

which show a projected growth of 5,600 new households per year, and it has an

overall housing supply target of over 100,000 new homes in the period to 2029.

44. On the basis of a HNDA which is robust and credible, ... the HSTs arrived at

are reasonable and appropriate. The authority has generally followed the approach

advocated in SPP and the HNDA guidance and I see no compelling reason to depart

45. I remain conscious though, of the lack of detailed evidence about how the

HSTs were derived from the adjusted housing estimates, and of the potential that

economic growth and the need and demand for new housing could still turn out to

[30] In relation to the HLR, the reporter concluded that the generosity allowance should

apply to the whole of the HST (All-tenure) and not just to the private sector. He did not find

that he had strong evidence to support an allowance for generosity which was at the bottom

end of the range (10 to 20%) stipulated in the SPP. Increasing the level of generosity would

have a relatively modest effect, but it would go some way towards ensuring that there was

sufficient land available if need and demand proved greater than projected, or the housing

land supply proved to be slow in becoming effective. An allowance of 15% would strike an

appropriate balance. This would give a private sector HLR of 80,160 (45% greater than the

adjusted private sector estimate). It would be about 16% above the private sector estimate of

69,040 based upon the High Migration scenario. It would give an All-tenure HLR of 116,150.

This would be about 22% greater than the adjusted All-tenure housing estimate and 8%

greater than the unadjusted All-tenure estimate on the High Migration scenario. He

recommended changes to the Clydeplan accordingly. This produced the following final

[31] On HLS the reporter noted that the SPP did not task SDPs with fully establishing the

HLS position. It was for the LDPs to ensure that sufficient land was identified to meet the

HLRs and the HSTs. The land supply in the Clydeplan represented the position at a fixed

point in time; some years in the past, by the time any LDP came to be adopted. The

Clydeplan therefore went too far in concluding that the established housing supply was

sufficient to deliver the HSTs and that no new strategic scale housing allocations were

required. With that in mind, the reporter recommended a series of revisions. Both policies 7

and 8 aimed to show how, in addition to identification of the HLRs, the Clydeplan could

[32] In its revised form, Policy 7 (“Joint Action Towards the Delivery of New Homes”)

encouraged local planning authorities to work together with developers to create innovative

mechanisms to improve housing delivery across all sectors; focusing on the HLS and public

sector estate whilst bringing forward new opportunities in accordance with Policy 8.

Policy 8 said that “In order to provide a generous supply of land for housing and assist in

the delivery of the [HSTs] in support of the Vision and Spatial Development Strategy” local

authorities should make provision in their LDPs for: the All-tenure and the private sector

HLRs, which were broken down into numbers for each local authority area; and the private

sector HLR, which was divided into sub-market areas (eg different parts of the “central” and

“eastern” conurbations). Local authorities required to provide the 5 years effective HLS for

each sub-market and each local authority area. As specifically modified by the reporter,

“Local Authorities should take steps to remedy any shortfalls in the five-year supply

of effective housing land through the granting of planning permission for housing

developments, on greenfield or brownfield sites, subject to satisfying each of the

 the development will help to remedy the shortfall which has been

 the development will be in keeping with the character of the settlement

 the development will not undermine Green Belt objectives; and

 any additional infrastructure required as a result of the development is

[33] The respondents were asked by officials to approve the Clydeplan, with the

reporter’s modifications, by memorandum dated 13 June 2017. This drew (para 10) the

respondents’ attention specifically to the housing issue; observing that the reporter’s view

had been that: the HSTs had been reasonable and appropriate; and the interested parties had

followed the approach in the SPP and the HNDA Guidance. The figures in the original

proposed plan, and as proposed by the reporter, were tabulated. The memorandum drew

(para 12 et seq) the respondents’ attention to the developers’ concerns about the HST for the

social sector; specifically that the reduction from the HNDA figure had been “unevidenced”.

Reference was made to the reporter’s comment about a lack of compelling evidence which

“SPP indicates should support” it. Passages of the report, including the one mentioning

“spuriously precise numerical justification”, were quoted in an attempt to summarise the

reporter’s reasoning. The official expressed her satisfaction that the developers’ concern had

[34] By letter dated 24 July 2017, the interested parties were advised that the respondents

had decided to approve the Clydeplan with modifications. They accepted the reasons set

[35] The respondents’ acceptance of the reporter’s reasons was unreasonable.

Accordingly, the Clydeplan was ultra vires and ought to be, in whole or in part, quashed

(Town and Country Planning (Scotland) Act 1997, s 238). In terms of the SPP, the HSTs

required to be supported by “compelling evidence” and properly justified. The reporter had

said that he did not have compelling evidence for the HSTs. Accordingly, he had not had a

proper evidential base for his findings. He had not insisted on an evidential base, in the

form of the completed templates being provided, nor had he described an evidential base.

He had not set out a basis for: not following the SPP (Hopkins Homes v Communities Secretary

(supra), at para 22, following Tesco Stores v Dundee City Council 2012 SC (UKSC) 278, at

para 18, and para 75); concluding that the HSTs were reasonable and appropriate; or

determining that the interested parties had generally followed the SPP. His conclusion, that

the HSTs were reasonable and appropriate, was inconsistent with those elsewhere. He had

accepted that there was a lack of transparency in the process through which the HSTs had

emerged. He had no evidential base upon which to appraise the individual local authority

area HSTs and the adjustments made to them. The appellants had subsequently recovered

the completed templates. Had they been produced at the time, the appellants would have

[36] The reporter had concluded that he did not have compelling evidence for the

adjustments. The reporter had recognised that the Government targets had been formalised

after the HSTs had been arrived at, but he did not recommend changing the HSTs. He had

recognised that the proposed plan could be assuming levels of delivery of social sector

housing, which could be less than what could now be achieved with the additional funding.

He had recommended additional text to allow for extra land allocation, but this did not

address the absence of evidence. He did not address the failure to comply with the SPP.

[37] The reporter’s conclusions on social sector HSTs and All-tenure HSTs were

inconsistent with his findings elsewhere and his recognition of the availability of additional

funding. He had attempted to mitigate the inadequacies in the evidence by increasing the

generosity allowance. This approach did not address whether the HSTs were justifiable. It

was inconsistent with SPP and the reporter’s own conclusions. The purpose of the

generosity allowance was to ensure that a supply of land for housing was available to meet

an HST that had been properly set. It was not to correct failings in the method by which the

HST had been set in the first place. The reporter’s reasoning in selecting 15% was

[38] The interested parties had had evidence on the basis for the specific adjustments, but

did not produce it to the reporter. The advice to the respondents had failed to set out the

reporter’s misgivings with the approach adopted by the interested parties and had not

[39] The appellants had suffered substantial prejudice (1997 Act, s 238(2)(b)). The whole

Clydeplan should be quashed (see Eadie Cairns v Fife Council [2013] CSIH 109; Scottish House

Builders Association v Secretary of State for Scotland 1995 SCLR 1039 at 1046). The effect would

be that the matter would go back to the respondents for reconsideration and not to the

[40] The appeal ought to be refused. A lack of compelling evidence to support the HSTs

did not result in the approval of the Clydeplan being outwith the powers of the 1997 Act

(s 238) or amount to a failure to comply with its terms. The respondents and the reporter

had correctly interpreted the SPP (paras 115 and 116). The basis for the HSTs did not

require compelling evidence. The SPP had been applied to the facts using professional

judgment; such issues being for the decision maker and not the court (Simson v Aberdeenshire

Council 2007 SC 366). Even if the SPP had been departed from, the explanation for doing so

had been adequate, when the report was read as a whole. If the approval had been ultra

vires, it would be enough for the court to narrate the errors in relation to the HSTs.

Alternatively, only that part of the plan relating to new housing should be quashed.

[41] The SPP contained broad statements to be read in the context of the whole policy

(Hopkins Homes v Communities Secretary (supra) at paras 22, 26, 74 and 75; Uprichard v Scottish

Ministers 2013 SC (UKSC) 21 at para [4]). That part of the SPP relating to the need for

compelling evidence (para 115) was a “process policy” designed to achieve the principle of

maintaining at least a 5 year supply of effective housing (para 110). Compelling evidence

was one of several factors to be taken into account. It was intended to operate as a check

that the principle was being complied with. The reporter used the phrase to mean that he

did not have the numerical justification, but he did have the explanatory factors in the

Background Report. He had placed considerable weight on the fact that the All-tenure

[42] The reporter had been entitled: to reach the conclusion which he did on the basis of

the evidence before him; to modify the Clydeplan to take account of the additional funding

for the social sector; and to permit local development plans to allocate additional land in

response. The amount of information required was one for planning judgment. The

purpose of the report was to inform the respondents of the relevant considerations. The

[43] The reporter had approached the issue of the HLR in a reasonable fashion. He had

acknowledged and taken account of four factors, viz.: (1) the lack of an evidential base for

the adjustments; (2) the concerns expressed about the effectiveness of HLS; (3) the additional

funding available for affordable housing; and (4) the uncertainty of future housing need and

demand. The purpose of the generosity margin was to try to ensure that sufficient land was

allocated in LDPs. Its selection was one for planning judgment. The reporter had given

proper and intelligent explanations for choosing the level of generosity which he did.

[44] The respondents had not been misled by any lack of information provided by the

interested parties or the advice upon it given by officials. The reservations of the reporter

had been reported to the respondents and advice given accordingly.

[45] Whether to quash the plan was a matter for the court’s discretion. The appellants’

complaints had been restricted to particular issues about housing growth strategy. The

Clydeplan applied to eight local authority areas, each of which required to prepare, and

keep under review, LDPs which were consistent with the Clydeplan. The appellants would

have an opportunity to make representations to each authority about the appropriate

housing allocations within the LDPs in the light of any findings made by the court. The

quashing of the Clydeplan would severely prejudice the local authorities which were at

various stages in the preparation of their LDPs. The court should consider quashing only to

a proportionate extent (see Retail Property Holdings v Renfrewshire Council [2015] CSIH 69 and

Hallam Land Management v City of Edinburgh Council 2011 SLT 965).

[46] The reporter found support for the HSTs in a number of factors, including the

HNDA. He had recommended additional text to enable land to be allocated to ensure that

the estimates were met. He had correctly identified a concern, but, in weighing the evidence

and applying his professional judgment, he had concluded that he was satisfied with the

[47] The reporter had concluded that the All-tenure HST was an important consideration

and could contribute to meeting housing need and demand. He had identified that

affordable housing could be achieved in a number of ways. In particular, LDPs would

require to make provision for the social sector. The reporter had considered the issue of

qualitative evidence at a hearing session when the methodology of agreeing the HSTs had

been discussed. He had been content to rely on the HSTs in the absence of further

information. The assessment of the HSTs involved a process. The SPP did not require

compelling evidence of every stage. The reporter did have evidence in the form of the

Background Report. He had recognised that the information previously sought might be

spuriously precise and ultimately relied on his professional judgment. The completed

templates had been regarded as the private workings of the local authorities. They had not

been necessary to the decision making process. Now that they had been recovered, it was

not clear what difference they might have made. The reporter had carried out an

assessment of the generosity figure to address shortfalls. He had applied his judgment in

selecting 15%. The information before him had not been misleading.

[48] If the Clydeplan required to be quashed, that should only be done in so far as

[49] In terms of section 238(2)(b) of the Town and County Planning (Scotland) Act 1997, a

development plan, such as the Clydeplan, may be quashed, in whole or in part, if it is

wholly, or to any extent, outwith the powers conferred by the Act or if the interests of the

applicant have been substantially prejudiced by a failure to comply with the Act or any

regulations made thereunder. A plan will be regarded as outwith the powers of the

respondents if they have improperly exercised the discretion confided in them, or made a

material error of law going to the root of the question for determination. It will also be ultra

vires if the respondents have taken into account an irrelevant consideration, failed to take

account of relevant and material considerations, proceeded on a fact for which there was no

evidential basis, or reached a decision which no reasonable Scottish Minister could have

reached (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 347-

[50] At the heart of the appeal is the contention that, in setting the HSTs, the reporter (and

hence the respondents) failed to apply the terms of the SPP, notably that part (para 115)

which states that the housing supply target (HST) should not only properly reflect the

HNDA in the particular sector but also be “supported by compelling evidence”. It is, first,

important to reiterate what has been said before on the subject of planning policy. A

planning authority, including the interested parties, must have regard to the SPP (Town and

Country Planning (Scotland) Act 1997, s 3E(3)). Where policy is an expression of general

principles (as the SPP is), it is not to be interpreted as if it were a statute (Hopkins Homes v

Communities Secretary [2017] 1 WLR 1865, Lord Gill at para 74 (having cited Tesco Stores v

Dundee City Council 2012 SC (UKSC) 278, Lord Reed at para 18)). Secondly, the particular

policy must be read in its context (ibid, para 72). Thirdly, if a planning authority departs

from a policy, it may be regarded as acting unreasonably in the absence of at least some

explanation for doing so (Scottish House-Builders Association v Secretary of State for Scotland

1995 SCLR 1039, Lord Sutherland, delivering the Opinion of the Court, at 1043).

[51] In this case, the general policy (SPP para 109) is to provide for new homes in certain

defined situations. This is to be done (para 110) by the identification of a generous supply of

land which will “support the achievement” of the housing land requirement (HLR) across

all tenures by maintaining a 5 year supply. That then is the objective which is to be attained.

The Clydeplan fully complies with this by, essentially, repeating it in Policy 8. The SPP

continues by stipulating (para 115) how the objective is to be attained. This is the process of

setting Housing Supply Targets (HSTs) for the social and private sectors based on (and

reflecting) the housing need and demand assessment (HNDA). The HSTs are to be both

reasonable and supported by compelling evidence. The policy does not require every figure

in the HNDA, or the adjustments, to be so supported; only the HSTs themselves. In so far as

the reporter may have thought otherwise (report para 14) he was mistaken, although he later

[52] The reporter did have detailed figures making up the original HNDA from each of

the local authorities. The figures had been described as “robust and credible” by the

Government’s Centre for Housing Market Analysis (CHMA) and, for that reason, they were

accepted by the reporter. This part of his decision is not challenged. The appellants’ specific

criticism is in relation to the absence of any reasoning for the original figures being adjusted

by each authority up or down, or not at all. The extent of the adjustment was evident from

the breakdown, of the totals noted above, into the eight separate local authority areas. The

reporter knew of the existence of completed templates, since they were referred to in the

Background Report (para 9.1) and mentioned in the response made by the interested parties

to his request for “further evidence” or at least an explanation. The factors which ought to

[53] Whether the material before the reporter amounted to “compelling evidence” may be

arguable, but the respondents did not seek to query the reporter’s conclusion that it did not.

The court will proceed upon that basis; the issue then becoming one of whether the reporter

gave an adequate and reasonable explanation for proceeding in the absence of that evidence.

After all, doing so would amount to a departure from what the policy requires. It is,

however, important to note that the departure relates to a requirement of the process in

arriving at the HSTs, rather than the policy principle to provide an adequate housing

[54] The reporter did give such an explanation. He observed (para 20) that it was the All-

tenure figure that was important. This was because not only did it include a social sector

figure, but also the private sector would contribute to the social sector by reason of, amongst

other things, each LDP fixing the proportion of affordable housing in any private

development. Although there may have been a lack of transparency in arriving at the HSTs,

the reporter explained (para 25) that he was not particularly concerned about this as there

was a danger in seeking “spuriously precise, numerical justification for decisions which

inevitably rely on a degree of professional judgment”. Such judgments had produced an

HST which was 26% up on the adjusted estimate and an All-tenure HST some 6% higher.

Because of this, the reporter had considered (at para 28) that any “misgivings” about the

evidence had been allayed. He thus justified his conclusion (para 44) that the HSTs were

reasonable and appropriate and that their calculation had “generally followed” the SPP and

HNDA guidance. It is of some note, in that connection, that, having produced the

completed templates and been able to pinpoint some anomalies, it was not demonstrated

that their content would have led the reporter to a materially different result.

[55] There is no complaint about the application of the generosity factor to the All-tenure

(ie including the social sector) HST. The criticism is that the reporter’s application of 15%

was not adequately reasoned. The reporter explained that he had had some reservations

about the adequacy of the HSTs, notably the social sector figure in light of increased

Government funding. The generosity factor (SPP para 116) is a discretionary amount

designed to ensure that the required housing supply is provided. The policy requires a

robust explanation for it in the development plan. It is so provided (paras 6.61-6.62). The

reporter recognised the reduction in the social sector caused by the re-allocation of the

balance to the private sector. The generosity level was to provide flexibility. In selecting a

higher percentage than that proposed, the reporter was not presuming that the HSTs were

incorrect. He was building in that flexibility, which is there to avoid a shortfall in land

supply, should the calculation of the HSTs prove to be an underestimate in the event of

[56] The appellants’ concern is about the comparative Housing Land Requirement and

Housing Land Supply figures. They are no doubt anxious to ensure that they have sufficient

flexibility within the planning system to enable them to develop such land as they may

already have or may seek to secure. The focus in the Third National Planning Framework

(para 2.20) and the Scottish Planning Policy (para 109) is on providing that flexibility. The

reporter has increased the All-tenure HLR from 107,960 in the Background Report to 116,150

in the Clydeplan. It is well in excess of the adjusted Sustained Growth estimate. The figure

for the All-tenure HLS is 117,600; ie the supply in the Clydeplan’s snapshot exceeds demand

even when the generosity factor is included. These figures indicate general compliance with

the policy principle (ibid paras 110 and 123) of identifying a generous supply of housing

land. The reporter was not deceived by anything said by the interested parties, given that

he was aware of the fact that templates, which he did not have, would have been completed

to produce the adjusted figures. The respondents were not misled by their official, who

accurately summarised the examination report, which was, in any event, supplied to them.

[57] The approval of the Clydeplan by the respondents, for the reasons set out by the

reporter, cannot be said to have been outwith the powers of the 1997 Act or to have

amounted to a failure to comply with the provisions of the act. On the contrary, the

reporter’s reasoning expresses in clear terms why he did not consider that the absence of

compelling evidence to justify the HSTs was material, given that produced in the

Background Report and elsewhere. For these reasons the appeal must be refused.

[58] Had the court reached a contrary view, it would have been inclined to quash only

that part of the Clydeplan which related to the provision of new housing; essentially

paragraphs 6.22 (Enabling Delivery of New Homes) to 6.81 and including Policies 7, 8 and 9.

While it is correct to say that a fundamental feature of an SDP is that its policies interlock

and it may often not be possible to excise one part without affecting the whole (Uprichard v

Scottish Ministers 2011 SC 172, LJC (Gill) at para [33], cf Eadie Cairns v Fife Council

[2013] CSIH 109, LJC (Carloway) at para [46]), in this case the new housing section is severable.

The effect of the partial quashing would not be to leave a permanent gap in the Clydeplan.

Rather, the matter would have to be returned to the Scottish Ministers for consideration of

this section anew under section 13 of the 1997 Act.

Scottish Court of Session Decisions