The five appellants, Mactaggart and Mickel Homes Ltd, Miller Homes Ltd, Cala Management Ltd, Persimmon Homes Ltd and Wallace Land Investment and Management Ltd, also argued that Inverclyde Council did not take proper account of the “generosity allowance” to be applied to supply targets.

The appeal was heard in the Inner House of the Court of Session by the Lord President, Lord Carloway, sitting with Lord Brodie and Lord Woolman.

Different methodologies

The relevant LDP was adopted by the respondents in 2019. A reporter was appointed to examine, report on, and make recommendations about the LDP. The appellants challenged the chapter of the Examination Report entitled “Housing Land Supply, Housing Supply Targets and Housing Land Requirement (HLR)”. 

In terms of Scottish Planning Policy, a generosity element requires to be added to the HST to establish the HLR. In order to provide flexibility, with a view to supporting the house building industry and to provide for long term growth, a generosity level of 15 per cent was applied to the HST to reach the HLR.

The relevant chapter of the Examination Report contained a summary of unresolved issues and the reporters’ response to them. One of these was the HLR in the part of Inverclyde within the Renfrewshire Housing Sub-Market Area. This HSMA extended across the boundaries of three local planning authorities; the whole of Renfrewshire, part of East Renfrewshire and part of Inverclyde.

Two different methodologies had been used to calculate the HLR for that part of Inverclyde in the Technical Report previously commissioned by the respondent; an annualised method and a compound method. The latter method took account of previously completed homes in adjusting the HLR going forward, while the former did not, which resulted in a shortage in HLS if the compound method was applied for the period to 2024.

The reporter took the view that a decision on the most appropriate methodology could not be resolved through the examination of an individual LDP, albeit that the role of the LDP was to ensure that sufficient sites are available during the plan period to enable the HLR to be met. On the basis of the reporter’s view, the respondents determined that there was no overall deficiency which might justify releasing greenfield land at Kilmacolm and Quarriers Village.

The appellants submitted that, by not reaching a conclusion on which methodology to follow, the reporter had failed to address key issues that he was required to address. Further, the reporter had misinterpreted the role of the generosity allowance in calculating the SDP’s HLRs and HLTs and confused the issues of supply and demand.

No decision made

The opinion of the court was delivered by Lord Carloway. On the methodology issue, he said: “On the face of things, the compound approach would seem to be the most sensible one. However, the decision is one of planning judgment and the annualised method may be capable of being supported. The problem with this Examination Report is that no judgment was exercised and consequently no decision was made.”

On the application of the generosity allowance, he said: “The purpose of the generosity allowance is to provide a margin to ensure that there is a plentiful supply of land. The HLR is set by the SDP. It cannot be changed by the LDP in the manner accepted by the reporter. It cannot be read in a different manner to suit a particular point of view.”

He continued: “The fact that a certain number of houses have been completed does not result in the generosity margin being removed from the number of these completions, as they feature as part of the HLR. That would only be legitimate if it was the HST and not the HLR that was to be achieved. It follows that the reporter’s calculations in that regard are erroneous and do not accord with SPP or the SDP.”

Of the reporter’s approach generally, he said: “The reporter had up to date information in the form of the 2018 HLA. The [HLS] report included detailed submissions on the subject. It produced significant shortfalls in the all tenancy and private figures for both periods in the SDP and in both the Inverclyde HMA and the Renfrewshire HSMA. This information was ex facie relevant to the determination of the critical issue of whether the LDP had demonstrated that the HLR was going to be met as required by the SDP and SPP.”

He added: “It was a relevant consideration. It may be, as the interested parties maintain, that the reporter deliberately ignored this information because it came too late and was produced in response to a request for further information which it did not answer. The reporter did not say that he had ignored the information or explain why, if he did, he had done so.”

Lord Carloway concluded: “If the reporter intended to ignore what appeared to be relevant information, it was incumbent upon him to say so and to give some reason for doing so.”

For these reasons, the relevant chapter of the LDP was quashed.