GLADMAN DEVELOPMENTS LTD AGAINST THE SCOTTISH MINISTERS [2019] ScotCS CSIH

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[1] This is a statutory appeal under section 239 of the Town and Country Planning

(Scotland) Act 1997 against the respondents’ refusal of an appeal against the decision of

Stirling Council to refuse the appellants’ application for planning permission in connection

with a proposed development consisting of 70 houses, a cemetery with associated

engineering works and landscaping on 11ha of land to the south of Campsie Road,

[2] The issues are whether the Reporter appointed by the respondents to make the

decision erred in failing, first, to decide whether the Council’s 5-year effective housing land

supply is currently being met by failing to determine whether the Council had used the

correct methodology to be used in calculating that supply, second, to take account, as

material considerations, of previous decisions made by the respondents and their appointed

reporters concerning that methodology (in particular decisions on whether the methodology

should take account of under-supply relative to previous targets), and, third, to give reasons

why she disagreed with the conclusions in those decisions in relation to the correct

methodology. Underlying the appeal is the appellants’ view that the figure for the Council’s

5-year effective housing land supply should be arrived at by taking into account under-

[3] Scottish Planning Policy provides for “a presumption in favour of development that

contributes to sustainable development” (paras 28 to 31) according to which planning

authorities “should ... ensure a generous supply of land for house building is maintained

and there is always enough effective land for at least five years” (para 123). While planning

decisions require to be made in accordance with the relevant local development plan “unless

material considerations indicate otherwise” (1997 Act, s 25(1)), where there is shortfall in the

5-year housing land supply, Local Development Plan (LDP) policies in that regard will not

be considered up to date (Scottish Planning Policy (2014) (SPP), para 125); further, the status

of the sustainable development presumption is elevated from a “material” (para 32) to a

“significant material” (para 33) consideration. In that situation:

“Decision-makers should also take into account any adverse impacts which would

significantly and demonstrably outweigh the benefits when assessed against the

This latter requirement results in a “tilted balance” in favour of granting permission

(Hopkins Homes Ltd v Secretary of State for Communities and Local Government [2017] 1 WLR

1865, per Lord Carnwath at p 1887, para 59, and Lord Gill at p 1891, para 80). For discussion

of the same framework of law and policy arising in relation to different issues, see Gladman

Developments Ltd v Scottish Ministers [2018] CSIH 17 (LP (Carloway), opinion of the court,

paras 2 and 5 to 9) and in Graham’s The Family Dairy Ltd v Scottish Ministers 2019 SLT 258 (LP

[4] How the number of years of effective supply of housing land is established requires

to be explained. The number of years is assessed annually in a planning authority’s

Housing Land Audit (HLA). HLAs provide a snapshot of the amount of land available for

the construction of housing at a particular time each year (Planning Advice Note 2/2010

Affordable Housing and Housing Land Audits, para 45). They are the measurement

through which the respondents are able to monitor planning authorities’ compliance with

the requirement for an effective 5-year housing supply. PAN 2/2010, issued to promote

greater consistency and transparency in the content of audits and the way in which they are

carried out (para 40), recognised the value of systematic collection of information to assess

the extent to which planning authorities are identifying and delivering sufficient land for

housing (para 44), and addressed the methodology and content of HLAs as follows:

51. A housing land audit should contain relevant information about the established

and effective housing land supply, allowing for monitoring and comparison with the

housing land requirement. The starting point each year will be the inclusion of:

• all land with planning permission for residential development, including the

• land allocated for residential development (including the residential component of

any mixed-use development) in adopted development plans (LDP); and

• other land with agreed residential potential, such as land identified for housing in

proposed LDPs or assessed as appropriate for housing following an urban capacity

52. Local authorities should consider including a range of variables in an audit

including a unique site reference, site area, site capacity, site ownership, the planning

status of the site, annual completions, the greenfield or brownfield status of the land,

whether it is a windfall site, and the type of housing being provided.

53. It is good practice to ensure that individual sites can be tracked readily from one

audit to the next until such time as development is completed. If the audit is to

provide an accurate picture of housing land supply, it will be necessary to ensure

that the annual completions are recorded accurately and shown in the audit,

including the residential component of mixed-use developments and the unplanned

contribution to the housing supply made by windfall sites and conversions.

Completions on regeneration sites should be shown net of any demolitions which

have taken place. All sites completed in any given year should be listed in a separate

schedule and a comprehensive table of historical annual completions should also be

54. Not all of the sites in the audit will be effective, and it is important that the audit

distinguishes effective, i.e. unconstrained sites, from those which are affected by

constraints which cannot be overcome in time to contribute to the housing land

requirement. The decisions and assumptions around effectiveness and programming

are crucial to the accuracy and usefulness of the data in the audit and therefore merit

55. The effectiveness of individual sites should be determined by planning

authorities in the light of consistent interpretation of the following criteria and

through discussions with housing providers. The aim is to achieve a realistic picture

of the available effective land supply which can contribute to the housing

requirement so that the level of additional housing, and therefore land needed to

meet the overall requirement, can be established. To assess a site or a portion of a site

as being effective, it must be demonstrated that within the five-year period beyond

the date of the audit the site can be developed for housing (i.e. residential units can

be completed and available for occupation), and will be free of constraints on the

ownership: the site is in the ownership or control of a party which can be expected to

develop it or to release it for development. Where a site is in the ownership of a local

authority or other public body, it should be included only where it is part of a

physical: the site, or relevant part of it, is free from constraints related to slope,

aspect, flood risk, ground stability or vehicular access which would preclude its

development. Where there is a solid commitment to removing the constraints in time

to allow development in the period under consideration, or the market is strong

enough to fund the remedial work required, the site should be included in the

contamination: previous use has not resulted in contamination of the site or, if it has,

commitments have been made which would allow it to be developed to provide

deficit funding: any public funding required to make residential development

marketability: the site, or a relevant part of it, can be developed in the period under

infrastructure: the site is either free of infrastructure constraints, or any required

infrastructure can be provided realistically by the developer or another party to

land use: housing is the sole preferred use of the land in planning terms, or if

housing is one of a range of possible uses other factors such as ownership and

56. Programming of sites is an important element of the audit. Programming is an

indication of the expected annual completions on each site, taking account of the

lead-in times, the ability of the site to be developed, and the capacity of the local

housing market. The housing land audit should show the expected completions on

sites over the following five years. The contribution of any site to the effective land

supply is that portion of the expected output from the site which can be completed

within the five-year period. It will be important that the programming is also related

to the expected timing of housing land allocations in the local development plan.

57. Programming is widely recognised as a less than scientific exercise. Nonetheless

it is important that assumptions do not overestimate the likely completions, as the

audited effective supply forms the basis for the calculation of the additional housing

land requirement to be provided through the development plan. Overestimation of

the potential of the effective supply will reduce the amount of additional land

allocated and therefore reduce the flexibility available in the supply to address

market fluctuations and other constraints to the delivery of housing. Realistic

programming will demonstrate the continued availability of sites to maintain a five-

year supply and help to monitor the availability of sufficient sites to continue to meet

the housing land requirement. It will also show whether the supply includes a

sufficient range of sites to meet the varying requirements of different parts of the

housing market. House builders are discouraged from underestimating the yield

from effective sites with the aim of seeking additional land allocations, and, equally,

local authorities are encouraged to become familiar with the realities of the operation

of the housing market in their areas and not to overestimate the likely level of

58. Planning authorities should use the information from the audit process to ensure

that at all times sufficient effective land is available to meet the housing land

requirement for at least the following 5 years. Planning authorities, housing and

infrastructure providers should work together to ensure that sites identified as

effective are successfully developed within the expected timescale. Where constraints

arise, or funding commitments necessary to delivery of the site are delayed, the

status of the site should be reviewed as part of the next housing land audit.

59. Where sites which form part of the established housing land supply are identified

as non-effective, the audit should identify the nature of the constraint and the

necessary action and time required for resolution of the constraint to allow house

building. Planning authorities, housing and infrastructure providers should work

together to ensure constraints inhibiting the development of sites are removed,

particularly where the site is needed or expected to contribute to the housing land

requirement during the life of the development plan. In a small minority of cases it

may prove impossible to remove development constraints. Where this occurs, the

60. Land with agreed potential includes any land which is not formally identified in

an adopted development plan or which does not have planning permission. It can

include land identified for housing in proposed local development plans or assessed

as appropriate for housing following an urban capacity study. Careful consideration

should be given as to whether to include such sites in the audit, although inclusion

will not pre-empt subsequent consideration of the status of the site by the planning

authority when finalising a development plan or determining a planning application.

If a site ultimately is rejected by these processes, it should not be included in the next

[5] On 17 February 2016, the respondents published their “Draft Planning Delivery

Advice: Housing and Infrastructure” (“the Draft Advice”). Under the heading “How should

the 5 year effective housing land supply be calculated?”, this document stated (para 22):

“The baseline for determining whether there is a 5 year supply of effective housing

land is the Housing Supply Target (HST). The HST should be expressed as a total

figure to be achieved over the development plan period under consideration,

[6] The Housing Supply Target (SPP, para 115) is a policy view, set out in the LDP, of

the number of homes the authority has agreed will be delivered 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; requires to be

reasonable, should properly reflect the Housing Need and Demand Assessment (HNDA)

estimate of housing demand in the market sector, and should be supported by compelling

“Below is an example of how the 5 year effective land supply should be calculated. It

is taken from the Heads of Planning Scotland Planning Performance Framework. See:

PPF4 Guidance: Annual report template and guidance notes – v4. February 2015.

This calculation will give a numerical shortfall or surplus. For example, if the

Housing Land Audit shows a 5 year effective housing land supply of 9500 effective

units, but the local development plan has a 5 year housing supply target of 10000

9500/10000 = 0.95 x 5 = 4.75 years effective housing land supply. In this case there is a

numerical shortfall in the 5 year effective housing land supply of 500 units has

“As part of the Housing Land Audit process, information on completions can be

used to identify how much land remains available. Completion rates should not

automatically be used as an indicator for additional land release. Where past

completions are lower than expected, it does not always follow that additional land

needs to be allocated for housing. A balance needs to be struck to ensure that low

levels of anticipated completions (arising from wider factors including market

conditions) do not artificially inflate the level of additional land release required.

Solutions may lie in unlocking allocated sites which remain constrained through

more proactive intervention such as the provision of infrastructure.”

[7] The Draft Guidance was subsequently withdrawn by the respondents on

29 November 2017, effective 1 December, but according to the open letter issued by the

Chief Planner, there remained “a strong policy position on planning for housing which is set

out in Scottish Planning Policy (SPP) and supported by PAN 2/2010”.

[8] In general terms the equation used to establish the number of years of effective

supply divides the actual 5-year effective supply by the annual HST. Prior to Stirling

Council’s 2017 HLA, previous completions were subtracted from the Housing Land

Requirement, which figure was then divided by the years remaining in the LDP to provide a

figure for the annual HST, to be used in the equation described (2016 HLA, p 5). The HLR

figure from which the completions would be subtracted was the number of new homes to be

built (based on the LDP’s HST) plus the “generous margin” specified in the LDP, ie 10 to

20% on the HST, depending on local circumstances, to ensure a generous supply of housing

land (SPP, para 116). In 2016, both calculations were discussed: taking into account previous

under-supply by subtracting completions from the HLR produced a supply of 3.9 years;

without the subtraction it was 4.9 years (p 16). The former method was adopted. The 2017

HLA, issued on 30 June 2017, used only the latter method. It said that the Council had

decided to use the calculation method specified in the Planning Performance Framework,

which itself referred (p 21) to paragraph 55 of PAN 2/2010 (supra). It recognised that the

precise method of calculating the number of years of effectively supply was disputed, that

there was a variety of approaches at both local and national levels of government and in the

private sector, and that there was no finalised guidance from the respondents in place

(page 14). Using its method, it arrived at a figure of 5.3 years’ effective supply of housing

land. Accordingly, absent a shortfall on the 5-year supply, in any planning applications for

housing, the sustainable development presumption would only be a material – as opposed

to a significant material – consideration, LDP policies in relation to the supply of housing

land would be considered up to date, and there would be no tilted balance in favour of

permission. The appellants challenge the conclusion that there was no such shortfall on the

basis that previous completions should have been taken into account.

[9] The equivalent issue also arose in the course of the preparation of Stirling Council’s

latest LDP in relation to the setting of the Housing Supply Target for the plan period. There

was a shortfall in delivery for the previous LDP of 540 homes. On 24 November 2017, the

respondents’ Reporters issued their report on the proposed LDP 2 (“the Examination

Report”). In this it was stated that paragraph 75 of the Draft Guidance (supra):

“does not actually exclude previous under performance in relation to completions

rates from being used as an indicator for additional land release. I find that

paragraph 75 cautions against ensuring that low completion rates do not artificially

inflate the level of additional land release required, but requires that a balance be

struck between low completions rates and the wider factors that contribute to such

low rates, and the level of additional land release required.” (Issue 3, p 48, para 18)

The Reporters recommended that previous completions should be taken into account in LDP

2. LDP 2 in the form in which it was adopted by the Council in October 2018 did take

account of past completions in arriving at a figure for the HST for the plan period.

[10] The appellants applied to Stirling Council for planning permission for the proposed

development at the Site. On 7 November 2017, the Council refused permission on the basis

that the application was contrary to the Development Plan and there were no material

considerations that would support any other conclusion. The Council considered that the

development would be contrary to Primary Policies 1 (Placemaking), 2 (Vision and Spatial

Strategy), 7 (Historic Environment) and 9 (Managing Landscape Change), and Policies 1.1(b)

(Site Planning), 1.5 (Green Belts; and the Council’s Supplementary Guidance, SG03, on

Green Belts), 2.1 (concerning Vision and Spatial Strategy and Sustainable Development) and

2.10 (Housing in the Countryside), of the 2014 LDP and proposed 2016 LDP. On the basis

that they would result in over-development of the settlement edge, and would not protect or

enhance the historic environment, the Council also considered that the proposals would be

contrary to guiding sustainable development principles in the SPP (para 29). In particular,

the decision letter noted that the scale of the residential development was beyond that

supported by its green belt and housing in the countryside policies, and would not provide

significant economic and social support to the local area in terms of Primary Policy 2.

[11] The respondents’ Reporter dismissed the appeal and refused planning permission by

letter of 25 July 2018 (“the decision”). The Reporter identified (para 2) the key issue as being

whether there was a shortfall in the 5-year effective housing land supply, which may have

justified approval despite the Site being within the green belt and the spatial strategy of the

LDP. The issues in the appeal to this court arise from the Reporter’s treatment of the

question of whether the 5-year effective supply was being met. It is therefore worth setting

“14. The requirement on councils to maintain a five years’ effective housing land

supply is emphasised in Scottish Planning Policy and is reflected in both the adopted

and the proposed local development plans. Currently, the appropriate methodology

for calculating whether there is a five years’ effective housing land supply is a matter

of considerable dispute, principally between local planning authorities and those

with an interest in building new houses or in securing planning permission for

residential developments. Advice on the appropriate methodology which had been

published in draft by the Scottish Government in February 2016 was withdrawn in

November 2017. In doing so, the Chief Planner drew attention to the existing policy

15. That advice note confirms that the annual housing land audit is the established

means of monitoring housing land. It provides a snapshot of the amount of housing

land available for housing construction at the particular time, and it also

demonstrates whether sufficient effective housing land is available to meet the

requirement for maintaining a continuous five year supply. In preparing the annual

audit, planning authorities are encouraged to consult widely with the house-building

industry. I note that Stirling Council did so, and reached agreement on the future

programming of construction on all of the sites included in the 2017 annual audit.

16. The council’s conclusion was that the audit confirmed that the effective housing

land supply exceeded the five years’ requirement. I note that the methodology it

applied broadly reflected that contained in the Scottish Government’s draft delivery

advice which has now been withdrawn. However it has not yet been replaced with

an alternative methodology. I also consider that it is clear from Planning Advice

Note 2/2010 that the responsibility for undertaking the annual audit rests with the

planning authority and, while it is expected to consult widely, it is not required to

obtain agreement to its conclusions. In these circumstances I am not in a position to

contradict the council’s conclusion that its 2017 annual housing land audit confirms

that the commitment to maintaining a five years’ effective housing land supply is

17. For the avoidance of doubt, I do not consider that the conclusions of the reporter

who recently examined the proposed local development plan are of direct relevance

to the determination of this planning application. Her task in assessing how much

housing land should be allocated for housing development in the next Stirling local

development plan to cover the period to 2027 was different from that which is before

me. My task in this appeal is to decide whether there is currently (or at least at the

base date of the 2017 audit) a shortfall in the effective housing land supply for the

next five years which might justify granting planning permission. The findings of the

2018 annual audit will reflect the changes which have occurred, and different

[112] The Reporter abdicated her responsibility to determine whether or not there was a

shortfall in the five year effective housing land supply. While as a matter of planning

judgment she may have been entitled to accept the Council’s methodology as reasonable, on

a fair reading of the decision, the Reporter simply considered herself bound by the Council’s

findings. That was not an exercise of judgment; it was a misdirection and an erroneous

fettering of her responsibility as decision maker. The respondents’ contention that the

Reporter would have reached the same conclusion on the basis that she considered the

application did not contribute to sustainable development was an impermissible invitation

to the court to make a planning judgment as to the weight that would be applied to the lack

[13] The Reporter failed to take account of the decisions of reporters and the respondents

in previous planning appeals or, in the alternative, if she did take them into account, she

failed to explain why she disagreed with them in relation to the correct methodology.

Policies should be consistently applied and previous decisions concerning matters of

national policy are capable of being material considerations, that is, “like cases should be

decided in a like manner”. Three recent decisions, one of which was accepted and adopted

by the respondents, concerning the methodology, and in particular whether it should take

account of past completions, were clearly material in view of the withdrawal of the Draft

Advice on the appropriate methodology. The Reporter came to a different conclusion on the

methodology from other Reporters, including the Examination Reporters, and the

respondents. The issues in those decisions were sufficiently closely related to the present

appeal that she should have had regard to them and explained why she was not following

[14] The Reporter failed to deal with the relevant conclusions of the Examination

Reporters, which had been raised by the appellants; in particular, the conclusions on the

methodologies for calculating the effective housing land supply and any shortfall. It is at

least arguably illogical to suppose that a different methodology should be used for housing

need in development plan terms, on the one hand, and development management, on the

other. Whether under-supply and past completions should be taken into account affected

the whole area and should not change depending on the facts and circumstances of the

planning application. The respondents do not refer to any particular decisions in support of

the assertion that there were decisions indicating that past completions should not be taken

into account. If the Reporter took account of any such decisions, for which there was no

basis in the evidence, that would have been unfair and would give rise to a further ground

[15] Whether or not there was a 5-year supply of effective housing land was a matter of

planning judgment for the Reporter, as was the methodology to be used in calculating it in

the circumstances of a particular case. The Reporter, in exercising her judgment in respect of

both of these matters, did not act wholly unreasonably, which is the applicable standard of

review. The methodology was in accordance with the Draft Advice published by the

respondents; the withdrawal of the Draft Advice did not imply that the method proposed

[16] As the appellants accept, the Reporter was correct that the conclusions of the

Examination Reporters were not of direct relevance to the application. The Reporter knew

that the proposed development plan process was considering the appropriate future

allocation. The new LDP would require to allocate sufficient land for housing to ensure a 5-

year supply when it was adopted. The Examination Reporters had identified the Site as a

possible housing land allocation, but concluded that it should not be allocated within the

forthcoming LDP, notwithstanding that she was considering recommending additional sites

to meet the housing land supply requirement. It was a matter of planning judgement in the

[17] The Reporter did not abdicate her responsibility to make a decision on whether the 5-

year supply was met: she accepted that it was on the basis of the 2017 Housing Land Audit

and the submissions of the Council. She did give reasons, on which she was entitled to place

considerable weight: she acknowledged that the methodology was a matter of dispute, that

the 2017 HLA was recent and had been agreed, and that the evidence provided by the

appellants (including the previous appeal decisions) did not contradict it.

[18] Each planning appeal required to be determined on its own facts and circumstances.

The extent to which previous decisions were relevant material considerations was limited.

Only if the issue and the facts were sufficiently closely related did any regard require to be

had to a previous decision. The extent of the material consideration that required to be

taken into account as a result of the appellants’ submissions in relation to previous decisions

was that the methodology was a matter of dispute. The appellants’ three examples are not

sufficiently closely related to amount to relevant material considerations that required a

detailed explanation distinguishing them from the present appeal. Further, there are dozens

of decisions in which the respondents or a Reporter have required to decide whether there

was a 5-year effective supply, and to determine the appropriate methodology. In the cases

of DLA Delivery Ltd v Secretary of State for Communities and Local Government [2018] EWCA

Civ 1305 and Hallam Land Management Limited v Scottish Ministers [2014] CSIH 110A, the

policies which were required to be consistently applied were clearly more closely related to

the relevant previous decisions in terms of the particularity of the policies under

consideration and being within the same planning authority area. DLA implied that a

decision-maker was required to take into account his previous decisions if the issues were

sufficiently similar, even if they were not specifically brought to his attention.

[19] In any event, it was clear that the evidence on effective supply presented to the

Reporters in the other appeals was materially different to the equivalent evidence in the

present appeal. Other previous decisions did reach different conclusions in relation to the

methodology, for example, PPA-200-2035: Tower Farm, Torrance. This court cannot

consider all the different decisions in relation to this general matter and discern an

established consistent approach that required to be distinguished if it is not being followed.

Regardless, the three decisions referred to did not create a precedent; indeed, they also

recognised that there was no definitive method endorsed by the respondents. In particular,

the Reporter in the Murieston Road Appeal concluded that whether there needed to be a

standard methodology and, if so, which one, is largely a policy matter for the respondents.

She also recognised that an up to date HLA is a very important tool in establishing the

effective land supply. In that appeal, the latest agreed HLA was 3 years out of date and in

those circumstances she could not agree that it was the only definitive assessment of the

effective supply. Similarly, in PPA-400-2071: Wellhead Farm, the Reporter also noted that

the latest HLA agreed between the Council and Homes for Scotland was 3 years out of date.

The 2016 HLA he referred to was not agreed and he had concerns about its robustness and

credibility. In PPA-320-2118: Hornshill Farm Road, there was no up to date agreed HLA, the

accuracy of the latest HLA was disputed and the LDP was out of date.

[20] As noted above (para [10]), the Reporter identified only one key issue in this appeal,

namely whether there was a shortfall in the five years’ effective housing land supply which

might justify approval of the proposed housing development, despite the appeal site’s

location within the green belt and the spacial strategy of the local development plan. Both

parties agreed that this was indeed the key issue, and that the Reporter was correct to

[21] The dispute between the parties before this court (and between the appellants and

the Council before the Reporter) focussed on the proper methodology for assessing whether

there was a shortfall in the five years’ effective housing land supply, and if so, the extent of

such shortfall. The appellants maintained before the Reporter, and before this court, that the

correct methodology was to take account of past completions and any past under supply

when determining whether there was a 5-year supply of effective housing land. The

position adopted by the Council before the Reporter was that past under supply and

completions should not be taken into account when assessing the 5-year effective land

[22] The differences in methodology may be significant – as was recognised by the

Council in its Housing Land Audit 2016. Page 16 of that document sets out the two

alternative methodologies in table 9a and 9b, together with a commentary on methods of

2014/15 2015/16 2016/17 2017/18 2018/19 2019/20 2020/21 2021/2022 2022/2023

SPP requires that planning authorities maintain a 5 year supply of Effective Land at

all times. The precise method of calculation is disputed, with varying approaches

being demonstrated across Scotland at both the local and national level. At time of

publication there was no finalised guidance from the Scottish Government in place.

This audit presents both the previous approach used by this authority to calculate

the supply and the approach utilised by the Scottish Government when reporting

Table’s 9a and 9b highlight the significant differences in approach, with a full year’s

supply differing between the methods and leads to a shortfall of either 55 units or

580. In any event the Stirling Council is not maintaining a 5 year supply, albeit that

the approach used by the PPF is extremely close to a 5 year supply. However, the

Council has published a Proposed LDP which identifies further land for

development. As outlined in section 3 many of these sites have not been included in

this audit, it is therefore important to note that supply over the next 5 years is likely

to increase and the Proposed Plan ensures a 5 year supply at adoption.

The calculation method used in Table 9a has been used for the current plan period.

As the LDP 2014 is still in place as the adopted plan, this is the methodology that is

used to assess compliance with SPP 2014. The calculation in Table 9b is provided for

information only at this point, pending updated guidance on this matter from the

[23] It will be seen from the above that in their 2016 Housing Land Audit the calculation

methodology used was that in Table 9a, which resulted in a shortfall of 580 units and an

effective housing land supply of 3.9 years. In their 2017 Housing Land Audit the Council

changed their methodology and effectively adopted the method of calculation shown in

Table 9b. This method of calculation, which left out of account previous under supply,

resulted in a figure of 5.3 years supply of effective land, and a surplus of 137 units. The

justification which the Council provided in their 2017 Housing Land Audit was as follows:

“SPP requires that planning authorities maintain a 5 year supply of Effective Land at

all times. The precise method of calculation is disputed, with varying approaches

being demonstrated across Scotland at both local and national level, and the private

sector. At the time of publication there was no finalised guidance from the Scottish

Government in place. This audit utilises the calculation method as outlined in the

Table 9 demonstrates that Stirling Council is maintaining a 5 year supply of housing

No further explanation for the change in the Council’s methodology was given. The

[24] There was therefore a stark dispute between the parties about methodology. The

appellants’ calculation, as stated in their statement of appeal to the Reporter, and which took

into account previous under delivery and past completions, resulted in 3.87 or 4.49 years of

effective land supply, and the Council relied on its 2017 Housing Land Audit which gave a

result of 5.3 years supply. The Reporter noted that there was a dispute as to the appropriate

methodology but did not seek to resolve that dispute or determine the issue.

[25] We agree with the submission of the appellants that this was an issue with which the

Reporter required to grapple, and to reach a determination. She had identified that the key

issue in the appeal was whether there was a shortfall in the 5 years effective housing land

supply. In order to decide this issue, we consider that she had to reach a view as to which of

the competing methodologies she preferred, and to give reasons for her decision. There

were alternative methods of calculation before her, and she was not bound to accept the

calculation advanced by the Council in preference to that advanced by the appellants.

Although she referred to Planning Advice Note 2/2010, nothing in that Advice Note obliged

her to accept the methodology adopted by the Council. The appellants categorised the

“In these circumstances I am not in a position to contradict the Council’s conclusion

that its 2017 Annual Housing Land Audit confirms that the commitment to

maintaining a 5 years effective housing land supply is currently being met”

as an abdication of her responsibility to determine the key issue. We agree with this

[26] The respondents submitted that the Reporter was entitled to reach this conclusion,

and that this was a matter of planning judgment. However, it does not appear to us that the

Reporter exercised any planning judgment on this issue; instead, she considered herself

bound by the Council’s methodology, and gave no adequate reasons for taking this view.

[227] We therefore consider that the appellants’ first ground of challenge must succeed.

[28] The appellants’ second ground of challenge was that the Reporter erred in law by

failing to take account of the decisions of the reporters and the Scottish Ministers in other

planning appeals, and of the Reporter in the examination of the proposed Stirling Council

LDP in November 2017. Senior counsel for the appellants accepted that these were not

binding precedents, and further accepted that the Reporter into the proposed LDP was

engaged in a different exercise from that facing the Reporter in the present appeal and that

the conclusions with regard to the proposed LDP were not directly relevant. However, he

submitted that the circumstances in these other proceedings were sufficiently similar that

they amounted to material considerations to which the Reporter ought to have had regard.

[29] We emphasise that each planning application, and each appeal to the Scottish

Ministers, requires to be considered on its own facts and circumstances; there is no question

of previous decisions constituting a precedent by which reporters in further appeals will be

bound. However, previous decisions of the Scottish Ministers or their reporters on planning

appeals are capable of being material considerations – DLA Delivery Limited v Secretary of

State for Communities and Local Government [2018] EWCA Civ 105 at paragraph 29; North

Wiltshire District Council v Secretary of State for the Environment (1993) 65 P & Cr 137 at 145;

Hallam Land Management Limited v Scottish Ministers [2014] CSIH 110A.

[30] Of course, in many planning appeals the issues will be site specific and the decision

in one appeal may carry little, if any, significance in another appeal. It will always be open

to a reporter to distinguish the circumstances of an earlier appeal, provided that adequate

reasons are given for the distinction. As it was put by Mann LJ in North Wiltshire District

"... It was not disputed in argument that a previous appeal decision is capable of being

a material consideration. The proposition is in my judgment indisputable. One

important reason why previous decisions are capable of being material is that like cases

should be decided in a like manner so that there is consistency in the appellate

process. Consistency is self-evidently important to both developers and development

control authorities. But it is also important for the purpose of securing public

confidence in the operation of the development control system. I do not suggest and it

would be wrong to do so, that like cases must be decided alike. An inspector must

always exercise his own judgment. He is therefore free upon consideration to disagree

with the judgment of another but before doing so he ought to have regard to the

importance of consistency and to give his reasons for departure from the previous

To state that like cases should be decided alike presupposes that the earlier case is

alike and is not distinguishable in some relevant respect. If it is distinguishable then

it usually will lack materiality by reference to consistency although it may be material

in some other way. Where it is indistinguishable then ordinarily it must be a material

consideration. A practical test for the inspector is to ask himself whether, if I decide

this case in a particular way am I necessarily agreeing or disagreeing with some

critical aspect of the decision in the previous case? The areas for possible agreement

or disagreement cannot be defined but they would include interpretation of policies,

aesthetic judgments and assessment of need. Where there is disagreement then the

inspector must weigh the previous decision and give his reasons for departure from

it. These can on occasion be short, for example in the case of disagreement on

[31] In R v Secretary of State for the Environment ex parte Baber [1996] JPL 1034,

Glidewell LJ (at page 1040) suggested a slightly different question for the decision-maker,

“’ [A] previous decision having been drawn to my attention, do I take the view that

it may well be sufficiently closely related to the matters in issue in my appeal that I

ought to have regard to it and either follow it or distinguish it?’. Morritt L.J. (at

p.1041) framed the question slightly differently again: ‘May the earlier decision be

sufficiently related to the decision I have to make? That is something that I should

properly comment on either following or, if disagreeing, saying why’.”

(See also Lindblom LJ in DLA Delivery Limited (supra) at paragraph 34.)

[32] These considerations apply with particular force in an appeal such as the present, in

which the issue was agreed to relate to methodology rather than to particular site specific

[33] The appellants in the present case placed before the Reporter three decisions of other

reporters in other local authority areas, which grappled with the same issue. In each of these

decisions one of the issues was the appropriate methodology to calculate the effective

housing land supply, and whether past completions should be taken into account in

calculating the 5 year requirement for the future. In other words, there was the same

[34] The first of these decisions related to an appeal regarding an application for

residential development at Murieston, Livingston. The decision by the reporter in that

appeal was dated 16 August 2017. At paragraph 3.56 of his decision the reporter observed

“In determining the housing land requirement for the period to 2009/19, the Council

takes no account of the number of completions achieved to date. Therefore, the

annual requirement of 1142 units stays the same regardless of what development

progress has been made to date, resulting in a 5 year requirement of 5710 units. The

appellants’ housing land requirement is net of completions, providing a residual

annual requirement of 2024 units resulting in a 5 year requirement of 10122 units.”

So the dispute as to methodology was the same as in the present case.

[35] At paragraph 3.58 the reporter in the Murieston appeal observed as follows:

“I consider the purpose of maintaining a 5-year effective supply is to make it more

likely that the development plan’s overall housing land requirement is met. In doing

so, it is clear that previous completions should be considered in the calculation. The

only reason I can see why this would not be the case is for policy reasons.”

“Whether there needs to be a standard method for calculating the 5-year effective

land supply and if so, what method, is largely a policy matter. My understanding is

that Scottish Ministers intend to publish policy guidance and replace PAN 2/2010.

However, at the time of submitting my report, no further actions have been made in

this regard. Scottish Ministers are invited to consider my assessment and

[37] In giving his conclusions on housing land supply, he stated at paragraph 3.93:

“The purpose of having a 5-year supply of effective housing land is to achieve a

particular development plan based housing land requirement. In this regard, previous

completions would need to be considered. However, the actual methodology that

should be adopted to calculate a 5-year supply is essentially a policy matter.”

[38] The second decision on which the appellants relied before the Reporter was a Notice

of Intention in relation to residential development at Wellhead Farm, Murieston Road,

Livingston. The date of the Notice was 13 November 2017. The Reporter observed at

“Previous decisions on planning appeals are, of course, not binding upon me.

However, conclusions on the interpretation of policy in those decisions are material

considerations in this appeal. Where such conclusions have recently been endorsed

by Ministers, that adds to their weight. Where relevant findings of fact are made,

those findings are evidence in this appeal. I do not, of course, take them as

incontrovertible evidence but consider them in the light of other evidence before

The Reporter in that case identified the same dispute as to methodology (at paragraph 42),

and then went on to record the similar methodological dispute before the reporter in the

earlier Murieston appeal. He set out the reporter’s reasoning in that earlier appeal,

including her decision that the appellant’s method best addressed the relevant principles,

and that this conclusion was accepted by the Scottish Ministers. He accepted the reasoning

in that decision, and considered that the appellant’s method should be applied to assessing

[39] The third decision letter relied on by the appellants before the present Reporter was

in relation to residential development at a site at Hornshill Farm Road, Stepps. The decision

letter was dated 17 November 2017. The final decision was taken by the Scottish Ministers,

who agreed with the Reporter’s reasoning. At paragraph 23 the Reporter gave the following

“In circumstances where the annual average supply target is not being met, it follows

that in the absence of any redress in the shortfall, the housing supply target over the

course of the development plan period will not be met. As also noted in Pan 20/2010,

if an audit is to provide an accurate picture of housing land supply, it is necessary to

ensure that the annual completions are recorded accurately and shown in the audit.

I would agree with the appellants that it is essential that the land supply calculation

takes into account the number of completions achieved to date in order to ensure

that the supply target is achieved by the end of the development plan period. “

[40] Senior counsel for the appellants acknowledged that the exercise in which the

Reporter on the proposed Stirling Local Development Plan was engaged was different from

the exercise in which the Reporter in the present case was engaged. However, he drew our

attention to some of the Reporter’s observations in that report which had some significance

in the present appeal. The Reporter made the following observations:

“40 Following the hearing and closing submissions, and all other written

evidence, I have concluded that the housing land calculation for this plan should be

based on the 2010 evidence base of the HNDA 2011 and should include any surplus

or shortfall of completions from the period 2010 to 2015 in the calculation.

50 The shortfall in delivery in the period 2010 to 2015 remains unaccounted for

in the Council’s proposed method of calculation. While on one hand the calculation

accepts the Housing Supply Target, it then appears to fail to take into account all the

consequences of the same Housing Supply Target in terms of delivery of homes in

51 The primary disagreement between the Council and all other parties on this

issue is whether the shortfall in completions from 2010 to 2015 should be included,

and for the reasons set out above, I conclude that any surplus/shortfall should be

52 I find no compelling evidence as required by Scottish Planning Policy or

convincing argument from the Council to support the omission of a shortfall in

53 … I find that Scottish Planning Policy at paragraph 115 clearly states that the

Housing Supply Target is ‘a policy view of the number of homes the authority had

agreed will be delivered over the periods of the development plan and local housing

54 Omitting the shortfall in delivery does not appear to achieve any particular

purpose other than to numerically achieve a lower target for this planned period. It

does not address the fundamental issue of Scottish Planning Policy requiring the

target and housing land requirement to be met in full, nor does it account for the

unmet yet identified need and demand for homes in the period 2010 to 2015.”

[41] We accept that the reporter who prepared the report on the proposed Stirling Local

Development Plan was fulfilling a different role from the Reporter in the present case, but

that report was published not long before the decision in the present appeal was issued, and

the new LDP was adopted shortly after the decision letter in the present appeal. The issues

regarding methodology, and the Reporter’s determination of them, were not identical to the

issues in the present appeal, but they contained notable similarities.

[42] The respondents drew our attention to the fact that not all of the recent appeal

decisions have been determined in the same way, and pointed to a decision of the Scottish

Ministers in relation to a proposed residential development at Torrance, East

Dunbartonshire. This decision was issued on 31 May 2017, before the Chief Planning

[43] The Reporter did refer to the conclusions of the Reporter who recently examined the

proposed local development plan (see paragraph 17 of her report), and explained that she

did not consider these conclusions to be of direct relevance to the determination of this

planning application, because the task of assessing how much housing land should be

allocated in the next LDP to cover the period to 2027 was different from that which was

before her. We accept that difference, although we observe that the reasoning and

conclusions of the Reporter on the new LDP have at least peripheral relevance to the

methodological dispute in the present appeal. However, the Reporter did at least make

reference to the report into the new LDP. She made no reference at all to the three previous

decisions, nor to their reasoning as to the appropriate methodology to be used for assessing

a 5-year supply of effective housing land. We consider that these were material

considerations to which she ought to have had regard. We do not suggest that she was

bound to follow the same reasoning nor to adopt the same methodology for calculating

effective housing land supply or shortfall. However, given that the same issue arose in

those appeals, and that the decisions of the reporters (or, as the case may be, the Scottish

Ministers) was to support the methodology favoured by the appellants, we consider that she

was bound to make reference to these and to explain why in the circumstances she was not

in a position to contradict the Council’s conclusion. She made no reference to these

decisions, nor did she make any attempt to distinguish them. In this respect also we

consider that she erred in law, and the appellants’ second challenge also succeeds.

[44] In summary, we consider that the Reporter has failed to address the key issue of the

appropriate methodology for assessing whether there was a shortfall in effective housing

land supply which might justify the “tilted” balancing exercise required by SPP paragraphs

33 and 125 – Hopkins Homes v Communities Secretary (supra); Grahams the Family Dairy Limited

v The Scottish Ministers (supra). In failing to address this, she fell into error of law. She also

fell into error of law in failing to have regard to material considerations, namely the three

appeal decisions which considered the appropriate methodology for assessing the existence

and extent of any such shortfall. She was not required to follow these as precedents;

however, she required to make reference to them and, if departing from the reasoning in

[45] Counsel for the respondents submitted that, even if we were against his primary

submissions and found that the Reporter had fallen into error of law, this court should

exercise its discretion not to quash the Reporter’s decision. He submitted that there was no

realistic prospect that the decision in relation to the appeal would have been different even if

the Reporter had preferred the appellants’ methodology for calculating the 5-year effective

land supply. The proposed development was clearly contrary to the housing policies of the

2014 LDP and the emerging LDP. The Reporter found that the proposed development was

contrary to the purpose of the green belt policy in the area and also that it was contrary to

the spacial strategy of the development plan. At paragraph 18 of her decision she concluded

that the presumption in favour of development that contributes to sustainable development

which was introduced by SPP did not apply. The appellants did not go so far as to submit

that the Reporter was bound to find that there was a shortfall in the 5-year housing land

supply; their complaint was merely that the Reporter did not give adequate reasons for her

preferred methodology. Relying on Hallam Land Management Limited v Scottish Ministers

(supra), counsel for the respondents submitted that the appeal was academic and should be

[46] We do not agree. Because of her decision that she was not in a position to contradict

the Council’s conclusion that a 5-year effective housing land supply was currently being

met, she did not address the “tilted” balancing exercise which she might (depending on how

she determined the key issue) have been required to address. Her errors of law went to the

root of the only key issue which she identified, and which both parties agreed was the key

issue. We do not consider that it would be appropriate in the circumstances of this appeal to

[47] For these reasons we shall allow the appeal, and quash the decision.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GLADMAN DEVELOPMENTS LTD AGAINST THE SCOTTISH MINISTERS [2019] ScotCS CSIH_34 (14 June 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_34.html Cite as: 2019 GWD 21-332, [2019] ScotCS CSIH_34, [2019] CSIH 34

Scottish Court of Session Decisions