4 Mar 2024
(last day before permission expires)
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(last day before permission expires)
"Policy 1: When considering all development proposals significant weight will be given to the global climate & nature crises" ?
"Policy 3: Development proposals will contribute to the enhancement of biodiversity" ?
For example, a recent appeal found that proposals must address NPF4 policy 3 (biodiversity) – planners can't just leave this up to conditions:
"However there are no proposals aimed at addressing NPF4 policy 3 (Biodiversity): specifically the requirement for all developments to restore and enhance biodiversity and for major developments to provide significant biodiversity enhancements in addition to any proposed mitigation measures. Without more detail I cannot be confident that simply applying a condition that seeks biodiversity enhancement would meet the “demonstrably better” expectation set by policy 3. As a result I find the appellants have not demonstrated compliance with policy 3."
These section 42 applications ask that new permissions be granted, identical to expired permission for 19/000182/PPP but with changes to specific conditions.
Granton submitted planning applications 24/00031/FUL and 24/00030/FUL on 5 Jan 2024. They garnered 173 objections by the deadline of 16 Feb 2024. It appears these applications weren't valid, and Granton resubmitted* them 4 Mar 2024, along with a third application, 24/00247/FUL.
In reviewing the DMP† (regulations with which all planning applications must comply) we do not think that the applications comply with 11(3), 9(2)(c) & 10(3)(b). We think that the applications are invalid as a result and therefore should not be considered by SBC until further corrections are made to them.
Amongst other requirements, "The application must be accompanied ... where any neighbouring land is owned by the applicant, by a plan identifying that land"
Registers of Scotland show Granton owns PBL6298.
PBL6298 is Kingsmeadows House (red outline, immediately adjacent the proposed site).
Granton's applications all incorrectly indentify the neighbouring Kingsmeadows House as being outside Granton's owership.
We ask SBC to please check these concerns. If so, in light of DMP 14(1) and section 42(4), can these applications be corrected now permission has expired?
* The resubmission is not explained in the applications, but the forms now mention "section 42", presumably per DMP 11(3).
† DMP = Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013
In 2015, Granton Homes & Zone Architects applied for planning permission in principle (PPP 15/00822/PPP) to build 10 flats
"to the rear of [Kingsmeadows] house in an area of land currently occupied by a play area and a mixture of rhododendron bushes and fir trees.
This site is considered suitable for development because it is not occupied by any mature trees"
design statement, pg 8.
The proposal was evaluated against 2011 planning policy (LDP) and granted. That permission expired 30 Mar 2019.
In 2019, Granton again applied for permission in principle (19/00182/PPP) to build 10 flats design stmt pg 10.
The application didn't provide adequate information to assess the proposals against 2016 planning policy (LDP):
Demonstrating the environmental, archeological, roads, etc acceptability of the proposal was deferred to the 14 conditions subject to which permission was granted.
In 2020, Granton & Zone applied for full permission 20/00275/FUL to build seven 5-bedroom houses in the East woods design stmt pg 27.
After 40 objections, Granton & Jamieson withdrew their application ("on the basis that the applicant will be allowed to resubmit a revised scheme following discussions with you and that no planning application fee would apply.")
In 2022, Granton and EMA Architecture applied for detailed permission 22/00422/AMC – i.e. an Application for the Matters specified in Conditions (AMC) of 19/00182/PPP.
Their proposal was for 14 flats over an extra floor, with the tree removal plan showing 50 trees to be felled.
After 509 objections, SBC rejected the application for failing to meet 11 of the 14 conditions, and failing to comply with environmental policies EP1, 2, 3, 7, 9, 10 & 13 and Place Making & Design standards 2 and 5.
All three of Granton and Pritchett's applications quote section 42 paragraph (2), then offer this interpretation:
"The section therefore makes it clear that such an application shall only consider the conditions of the consent and not revisit the original planning permission. Any representations relating to the principle of the development would not therefore be relevant or material."
What Granton and Pritchett's interpretation doesn't allow for, is the fact that the underlying permission has expired and can't now be executed.
This has been tested in the Scottish courts, who found that where underlying permission has expired, planners' duties are quite different and much broader
This wider interpretation of the lattitude afforded planners when evaluating section 42 applications for expired permissions can also be found in Scottish Planning Circular 3/2022 and articles from reputable law firms such as Brodies.
In this specific case, where granting any of these applications would result in a renewal of an expired permission, we ask planners to consider the effect of granting any new permission in light of the new National Planning Framework 4 (NPF4), which represents a material change compared with previous policy, e.g.:
"Policy 1: When considering all development proposals significant weight will be given to the global climate & nature crises."
Refusal of 22/00422/AMC on environmental grounds is a weighty material considerations in light of NPF4 policy 1.
Granton's 3 applications ask that new permissions be granted, identical to the expired permission but with changes to specific conditions. The two original applications ask for changes to conditions 2 and 7 respectively. The new, third application asks for a single permission containing changes to both conditions.
Condition 7 of the expired permission requires:
"a management plan for the site and the remainder of the parkland/woodland, detailing maintenance, curtilage, access and boundary treatment proposals. Reason: To maintain the character and open nature of the grounds within and surrounding the site and to protect the character and appearance of the conservation area."
Granton request new permission, with the protection of condition 7 reduced to "the woodland within [the] application site" (i.e. the site of the new flats).
Condition 2 of the expired permission says:
"No development shall commence until all matters specified in conditions have, where required, been submitted to and approved in writing by the planning authority. Thereafter the development shall only take place except in strict accordance with the details so approved."
Granton want new permission with this one word "except" removed from condition 2.
Granton and Pritchett don't address the questions: why is this important for an expired permsission 19/00182/PPP? Why has this only became important now?
The objections below are one opinion.
We've focussed on what's different this time, but we understand there are many reasons why you might want to object.
Please tell SBC planners your reasons for objecting and how this impacts you.
All 3 applications appear to misidentify neighboring land owned by the applicant. As a consequence, the applications seem to us to be invalid.
We ask planners to bear in mind Scottish Courts decision 9 Apr 2020 and Planning Circular 3/2022, indicating planners have much broader scope than Granton say when considering these section 42 requests in respect of expired permission.
Granton has had 8+ years to demonstrate their plans were acceptable against then-current environmental policy – but they did not do so.
We ask planners not to give Granton more time on a permission containing environmental conditions designed for outdated policy.
Planning policy has materially changed. Planners should consider NPF4 and give considerable weight to the climate and biodiversity crises.
Refusal of 22/00422/AMC on environmental grounds is a weighty material consideration, especially in light of NPF4 policy 1.
It is reasonable to require any renewal of planning permission to evaluate proposals on their merits against current planning policy, NPF4.
Granton and Pritchett say "the condition fails the tests of circular 4/1998 as the condition is not relevant to the development proposed."
However circular 4/1998 "... makes clear that the planning authority may impose conditions regulating the development or use of land under the control of the applicant even if it is outside the site which is the subject of the application."
The condition seems both necessary and reasonable in light of Granton's application for the East woods 20/00275/FUL and its conditional withdrawal.
The request to clarify a single word in a condition on an expired permission (which cannot therefore be executed – as the first sentence of condition 2 makes clear) seems pointless.
It seems natural to ask whether the purpose of this request is to obtain a renewal while avoiding scrutiny under current legislation, NPF4?
Should a new permission be granted, we ask planners to use their discretion under section 59(2A) to grant permission for a shorter period than the default 5 years, bearing in mind the original deadline of 5 Mar 2024 for submission of AMC.
In order for your objection to count, you must submit material objections (see key objections above). Minimum: a sentence or two – ideally several paragraphs.
Thank you to the 58 people who have objected so far
Thank you to the 102 people who have objected so far
Thank you to the 89 people who have objected so far
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SBC's help for submitting objections: instructions; postal address; phone number; and what planners will take most notice of ("material planning considerations").
We won't list objections from private individuals here unless you request us to add yours.
Planning Circular 4/1998: the use of conditions in planning permissions
Planning circular 3/2022: development management procedures
Annex H: Applications for Planning Permission Under Section 42
"5. In determining a Section 42 application, authorities may consider only the issue of the conditions to be attached to any resulting permission. However, in some cases this does not preclude the consideration of the overall effect of granting a new planning permission, primarily where the previous permission has since lapsed or is incapable of being implemented."
These are legal agreements used to mitigate the wider impacts of proposed developments, covering developer contributions for affordable housing and infrastructure such as: schools; play facilities; and transport.
Here Granton agreed with SBC (with Barclays' consent):
"The Planning Authority has agreed to grant the planning permission sought under the Planning Application upon certain conditions. These conditions have been agreed between the parties."