PlanningBlog – Brodies LLP

Most people will already have seen Jim Mackinnon’s advice on occupancy conditions. It relates to applications for new housing in the countryside where the question of need must be weighed against other impacts such as road safety, landscape quality or natural heritage, and his advice is that where need is demonstrated, no occupancy restriction is required.

Although the advice doesn’t directly say so, it would plainly support an application to remove existing occupancy restrictions.

Since this is framed as advice, you’d think that the government’s position had not changed. However, Circular 4/1998 on conditions remains in effect, and it suggests that occupancy restrictions might be appropriate in these circumstances (see para 100). If there has been a change of policy, you’d think the circular would be re-issued with the relevant changes.

One reason for the use of occupancy conditions is precisely because the need justification can overcome other objections:  a farmhouse is no doubt needed on a farm, but what happens if the farmhouse passes out of farm use while the need for it subsists? In the light of the advice, it now seems perfectly possible for a farmer to justify a new farm house on the basis that he’s signed a contract for the sale of the old one.

Of course, the advice is qualified: “In areas where, due to commuter or other pressure, there is a danger of suburbanisation of the countryside or an unsustainable growth in long distance car-based commuting, there is a sound case for a more restrictive approach”. This seems to be a qualification that could remove a large part of Scotland from the ambit of the advice including possibly all greener parts of the wider central belt from Perth to Peebles. No further definition is offered. 

It seems to me that from now on any planning authority that does want to impose occupancy conditions in certain areas must define those areas and justify the restrictions through the development plan process. Until those policies are in place, we’ll  no doubt see a definition of areas where occupancy restrictions are justified emerging appeal by appeal.