Chief Planner Letter: the not so transitional arrangements for NPF4

The long wait is finally over and the National Planning Framework 4 (NPF4) has been formally adopted. As we prepare for the immediate impacts it will have on the planning system, Planning Minister Tom Arthur and Chief Planner Fiona Simpson have published a letter providing advice on the transition to the new development plan system, and setting out details on some policy considerations. However, has this left us with more questions than before?

Development plan

NPF4 forms part of the statutory development plan, alongside the applicable Local Development Plans (LDPs). NPF4 has superseded NPF3 and the Scottish Planning Policy (SPP), Strategic Development Plans (SDP) and the associated SDP supplementary guidance (SG) will cease to have effect.

Current adopted LDPs will continue to form part of the statutory development plan, with existing land allocations maintained. Supplementary guidance associated with adopted LDPs which came into force before 12 February 2023 will continue to apply as part of the development plan. The Scottish development plan system is transitioning to one without statutory supplementary guidance, but local authorities can continue to prepare and adopt SG associated with the LDPs until 31 March 2025.

Section (1)(a) of the 1997 Act currently requires Planning Authorities to prepare new LDPs on a 10-year basis. ‘New style’ LDPs are to be prepared within a timely fashion, with an expectation that every authority will have a new plan in place within five years of the new development plan regulations coming into force, so this should be by 2028 at the latest.

Interestingly, there is no legal requirement for LDPs to be directly ‘compatible’ with NPF4, with only a requirement that Planning Authorities take NPF4 into account. This seems contradictory to a plan-led system where the most recently adopted plan, whether that be NPF4 or the LDP, takes precedence. Under the Town and Country Planning (Scotland) Act 1997; section 24(3), in the event of an incompatibility between the provisions within NPF4 and that of an LDP, whichever of them is the later in date is set to prevail.

There will be limited scope through the examination process to reconcile identified inconsistencies in proposed LDPs in order to align these with NPF4. This is limited to issues raised in representations and the process must remain proportionate and fair.

Applying NPF4 policy

Section 25 of the Planning Act will continue to apply but decision makers will make decisions at their discretion and informed by two tests – proportionality and reasonableness.

There is no grace period for live planning applications currently under consideration. Many of us will have already experienced a case officer asking for additional reports or surveys such as Statements of Community Benefit or Biodiversity Enhancement Plans as required under NPF4. No guidance has been set out on whether planning applications currently under assessment (having been submitted well before NPF4 coming into force) could be exempt from NPF4 requirements. Can we anticipate that even applications that have been assessed and are waiting on a Section 75 being agreed could require these additional inputs?

The letter sets out that NPF4 is to be read and applied as a whole, but conflicts between policies are to be expected, with planning judgement emphasised in this case. Again, where there are contradictory or conflicting policies between NPF4 and LDP’s, whichever of them is the later in date is to prevail.

The Transitional Arrangements set out advice on individual NPF4 policies, specifically advice on Policies 1, 2 and 3 which relate to climate, nature and biodiversity as well as relevant aspects of policy which will dictate direction on new housing supply and drive-thru developments.

Climate and nature

Policy 1 confirms that the climate and nature crisis will be prioritised in all decisions. However, it will be up to the decision-maker to decide whether the significant weight of this will be in favour of or against the proposals.

Policy 2 Climate mitigation and adaption: it is not clear when a quantitative assessment for emissions will be needed as there are no defined thresholds for when different levels of information are required. Decision-makers and developers have been directed to use the ‘Carbon Management Guidance for Projects and Programmes’ but the Government has not yet confirmed whether (or when) this guidance should apply.

To support Policy 3 Biodiversity, the Scottish Government has commissioned research to explore options for developing a biodiversity metric or other tools in order to support guidance related to this policy.

Policy 16 – Quality homes

Policy 16 Quality Homes promotes a plan-led approach to new housing. New LDPs must include targets for meeting local housing needs, which in NPF4 is referred to as the Local Housing Land Requirement (LHLR). This will be informed by an Evidence Report and Gate Check process which now becomes an important component in the preparation of new LDPs. LHLR should exceed the Minimum All-Tenure Housing Land Requirements (MATHLR) as set out in the NPF4.

As SPP no longer applies, neither do the requirements to maintain a minimum five-year supply of effective housing land at all times. Shortfalls in supply indicate that LDP policies are not up-to-date, with the ‘presumption in favour of development that contributes to sustainable development’ and the concept referred to as ‘tilted balance’.

Consideration must now be given to whether provisions in LDPs are incompatible with the provisions of NPF4. Where there is an incompatibility (i.e. between a housing exceptions policy in a LDP and Policy 16(f) of NPF4), the latter will prevail. In plain language: no unallocated land will be supported barring a few exceptions where there is consistency with policy on rural homes, smaller scale within an existing settlement boundary or for less than 50 affordable homes as part of a local authority supported affordable housing plan. This means that new greenfield allocations, which are desperately needed to deliver much needed housing across Scotland, will require more robust justification through the development plan process.

Once adopted, the delivery of new style LDPs will be monitored and supported through the Housing Land Audit (HLA) and the LDP Delivery Programme. New guidance on Housing Land Audits is to be prepared at some point this year. Under Policy 16(f), delivery of new housing on unallocated land will need to be supported by two consecutive years of HLA showing evidence that the delivery of sites is happening earlier than identified in the deliverable housing land pipeline. Until then, the uncertainty around how we deliver new housing on unallocated sites will continue.

It is also worth noting that if an LDP reaches examination without sufficient sites identified to meet the LHLR, a planning authority can be required to prepare another proposed LDP under new legislative provisions in section 19ZA of the 1997 Act.

Drive-thru development

The Government has sought to provide reassurance that Policy 27(d) would not create a moratorium or ban on this type of development. Instead, the policy is intended to ensure that this type of development is considered as an integral part of the wider development plan. In application, this policy will likely restrict this type of development to locations deemed suitable (such as those allocated for Class 1 Shops and Class 3 Food and drink uses). Further guidance on this has been promised which will hopefully provide clarification to decision-makers and developers on how this policy will be applied.

As the Scottish Government works to clarify many of the points outlined and planners grapple with the immediate changes brought in by NPF4, our role within the development process could not be more important. Our team of planners have a breadth of experience when it comes to implementing new policy and therefore have the knowledge and expertise to help understand what these changes mean to developers and projects going forward.