In 2014, a presumption in favour of development that contributes to sustainable development was introduced into Scottish Planning Policy (SPP) along with a number of underpinning policy principles - effectively defining what constitutes such development - to be applied when determining planning applications.

The Scottish Government though has recently consulted on a proposal to remove that presumption, although the policy principles would be retained. But what does this mean for developers or for anyone with an interest in development?

Many welcomed the introduction of the presumption on the basis that it would facilitate development, particularly in cases where a local development plan was out of date (more than five years old). However, it has increasingly become a source of tension and conflict with regards to what constitutes sustainable development, and when and how it should be applied.

That has now come to a head with the courts finding that any development that would address a shortfall in the five year housing land supply for a development plan area would almost inevitably trigger the presumption and planning permission should then be refused only if the proposed development would have adverse impacts which ‘significantly and demonstrably’ outweigh its benefit. In other words, there is a ‘tilted balance’ in favour of planning permission being granted, with the proposed removal of the presumption effectively seeking to tilt this balance back again.

Opponents to the proposal have raised concerns that removal of the presumption would restrict the delivery of much needed development, in particular housing. In our opinion, there is no reason why that should be the case.

The economic impact of the fall in oil price and the current pandemic have demonstrated the importance of the planning system being able to be flexible and respond to rapidly changing social and economic circumstances, as reflected in, for example, a decline in demand for employment land and office space. In our experience however, developments which seek to respond to these changes with proposals to re-purpose underused sites currently struggle to receive consent in the face of development plan policies which look for the existing use to be retained. And the presumption has been of little help in these situations if the development plan is ostensibly up to date in all other respects.

Even without the presumption the planning system still allows for departures from the development plan where there are material planning reasons for doing so. Importantly, the SPP policy principles include giving due weight to net economic benefit, responding to economic issues and making efficient use of existing capacities of land, and we believe that the proper application of these principles provides a more balanced basis for such decisions than applying a blanket presumption.

That should also see brownfield land prioritised for development - in line with other national and local policy requirements - thus also making a more effective contribution to sustainable development than the presumption does. As such, there is good reason to support the proposed removal of the presumption, without that impacting on development.