No Room For Legal Barriers As Demand Builds For Homes

• Published date: 20 March 2023
• Subject Matter: Real Estate and Construction, Construction & Planning, Real Estate
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Fraser Mitchell

With Scotland and the rest of the UK continually missing housebuilding targets, Fraser Mitchell, Partner in our Property and Infrastructure team, asks: what are the roadblocks to building?

Figures from Homes for Scotland indicate that there is currently a shortage of almost 100,000 homes in Scotland. According to their most recent figures, 25,000 new homes are needed each year to keep pace with need and demand - and that figure was last met in 2007. Let those figures sink in. That could mean 100,000 families priced out of the housing market because demand is outstripping supply or 100,000 older couples unable to downsize (and free up larger family homes) because smaller, more suitable, homes are not available. Of greatest concern is that it could mean 100,000 families living in sub-standard housing, the impacts of which are among the practical consequences of failing to deliver the number of homes to meet the real need and demand.

The question then arises: if this scale of shortage exists, why don't we, as a nation, just build more houses? Building new homes requires a number of elements to be in place - there must be willing developers, access to development funding, a skilled workforce, a demonstrable need and demand for new homes, and land that can be made available for those homes to be built upon. Scotland has an abundant supply of all five of these. A further key issue is that development requires planning permission, and the planning system is a public regulatory system. It is the local planning authority (the Council or national park authority) or the Scottish Ministers who are responsible for granting the authorisations needed to develop land. That system has a statutory framework - put in place by Parliament - and a policy basis. In essence, the statutory framework sets out the procedural rules for preparing development plans and submitting and determining planning applications, and planning policy guides how planning decisions should be taken.

When it comes to dealing with formal development proposals, the statutory framework is broadly similar across the UK. Planning applications should be determined in accordance with the relevant development plan unless material considerations indicate otherwise. What is material and what weight should be attached to it in the decision-making process is a matter of planning judgement for the planning authority. In Scotland, the development plan has recently changed with the adoption of National Planning...