In Gladman Developments Limited v The Scottish Ministers [2002] CSIH 28 the Inner House has given clear guidance on the application of the “titled balance”, which will be of considerable interest to all planning practitioners, and its influence will extend well beyond the somewhat specialised area of housing land supply with which the case was concerned.  Whilst alluding to earlier cases, it is this decision which confirms the proper approach to take.

Scottish Ministers’ arguments that the tilted balance provided for in the second part of SPP paragraph 33 did not apply unless and until the decision maker had first determined that the development was, in effect, sustainable were rejected by the Inner House.  It determined that whenever there was a shortage in the five year housing land supply (5YHLS) that shortage became a material consideration in favour of the grant and counterbalancing factors required to outweigh that consideration significantly and demonstrably.  Application of the tilted balance is “not an exercise undertaken after a determination of suitability has taken place” ([44]).  Ascertaining whether, in overall terms, a development is sustainable is a matter of planning judgment which involves the uses of the tilted balance.

It will apply in much the same way as it does in England, where it has been subject of multiples cases.  The Inner House quashed the Reporter’s decision as she had not applied the tilted balance despite finding a shorting in the 5YHLS.   The Court went as far as stating that the starting point where there was such a shortage in the 5YHLS there was a presumption in favour of development but that the question thereafter was whether adverse impacts significantly and demonstrably outweighed the benefits.

The case is important because the tilted balance will apply not only where there is no 5HYLS but also where a plan is out of date and potentially in all areas of planning law, not just housing.  Whilst this would not be news to an English practitioner, it will require some considerable reappraisal of current approach of many Scottish ones.

The Court also made clear, in obiter comments, that the proper target for the 5YHLS was the housing land requirement and not the housing supply target, which the Reporter had mistakenly used when determining the level of shortage.  The greater the shortage, the heavier the weight which tilts the balance will be.

James Findlay QC and Alasdair Burnet of Terra Firma Chambers represented Gladman Developments Limited.