Scottish court clarifies ‘tilted balance’ principle in planning cases

The ‘tilted balance’ principle makes a presumption towards planning permission being granted unless there are “adverse impacts which would significantly and demonstrably outweigh its benefits”.

Gladman Developments had appealed against a decision of the reporter, the government-appointed decision maker, to dismiss its appeal against Inverclyde Council’s refusal to grant planning permission for a housing development.

Although the reporter found that there was a probable shortfall in five-year housing supply in the area, she refused to grant permission because the development did not constitute sustainable development.

Handing down his judgment (22 page / 510KB PDF), Court of Session president Lord Carloway said that a preliminary assessment of sustainability was unlawful where the presumption was engaged. Lord Carloway also said that a housing development which remedied, to some extent, a housing shortage would “almost inevitably” contribute to sustainable development and provide economic benefits.

“Whether it is, in overall terms, a sustainable development is another question. That is one for planning judgement, but it involves the use of the tilted balance,” Lord Carloway said. He said the existence of one or more adverse findings in relation to the 13 guiding principles on sustainability in SPP did not prevent the operation of the tilted balance, although it may result in the balance tilting back to refusal.

Planning law expert Gary McGovern of Pinsent Masons, the law firm behind Out-Law, said the decision would be significant for any developer with a scheme where there is either an out-of-date development plan or, in particular, a housing land shortfall.

“It resolves a long-running debate over exactly how and when the ‘tilted balance’ is applied in the context of the SPP’s presumption in favour of development that contributes to sustainable development, in a way favourable to those promoting housing development. Schemes in locations with a housing shortfall will almost inevitably contribute to sustainable development and should benefit from the presumption in favour unless there are significant and demonstrable adverse impacts,” McGovern said.

“In that context, the court also usefully confirmed that a housing shortfall is to be considered in the context of the (higher) housing land requirement, which has a generosity factor applied, not the (lower) housing supply target. As the court noted, ‘the greater the shortage, the heavier the weight which tilts the balance will be’,” McGovern said.