Save Kingsmeadows

The woodland at the heart of Peebles

Developers held in-principle permission for 8 years, but build was refused for failing environmental policies 1-3,7,9,10&13.

Their 3 years to request detailed permission having expired their current permission can no longer be implemented.

24 May 2024: planners recommended 5 year renewal "no need to assess the application against the extant development plan"

Mon 3 June 2024 Decision postponed

SBC's Planning Committee meeting of 3rd June decided to postpone its consideration of 24/00030/FUL

Hear SBC's Chief Legal Officer explain why the legal issues are being re-evaluated

Watch the meeting recording

You can read the issues here

Watch the high resolution version (right-click to download)

Granton just made 3 "Section 42" applications

They resubmitted two applications from January without explanation.

Along with a third, new application. All 3 appear to us to be invalid.

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"

Kingsmeadows House PBL6298 Proprietorship

Registers of Scotland show Granton owns PBL6298.

PBL6298 is Kingsmeadows House (red outline, immediately adjacent the proposed site).

Kingsmeadows House PBL6298 Plan
Application location plan

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

Granton has had 8+ years

to obtain detailed permission matching their PPP – and acceptable against environmental policy.

That didn't happen. Their permission expired 5 Mar 2024.

2015 design statement page 8

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.

2019 design statement page 10

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):

  • SBC's landscape architect noted that by failing to include an arboricultural impact assessment (AIA), the application did not show "the trees that will require to be removed as a result of the development."
  • SBC's ecologist noted key issues as "Potential impacts on a Natura site (River Tweed SAC) and Protected Species including European Protected Species (bats and otter)"

Demonstrating the environmental, archeological, roads, etc acceptability of the proposal was deferred to the 14 conditions subject to which permission was granted.

2020 design statement page 27

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.")

2022 tree removal plan

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.

Planners can and should consider NPF4

Planners' duty when considering these section 42 applications is much broader than Granton say

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

  1. Planners can consider "the overall effect of granting a new planning permission."
  2. "Any decision on whether to grant the [S42] application must be in accordance with the current development plan" – NPF4 in this case
  3. "Where the development has not yet commenced" planners "may reconsider the principle of development in light of any material change in policy"
  4. New planning policy is a more weighty material consideration when considering S42 applications where development has not commenced.
    [Scottish Courts decision 9 Apr 2020, City of Edinburgh against Scottish Ministers, paragraphs 35-38]

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.

What are Granton's section 42 applications?

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 – with less woodland protection

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 – remove a single word

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?

Key objections

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.

Condition ⑦ – with less woodland protection

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.

  • If you care about the cumulative impact on this woodland
  • If you think SBC are right to protect this conservation area
  • If you believe the developers should comply with the full condition

... then please ask planners to keep the vital protection of condition 7 for the wider woodland – and reject this application.

Condition ② – remove a single word

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?

  • If you feel it's unfair to reset the clock because of a single word
  • If you think the existing deadline should stand – unmodified
  • If you want the public to have a say any time soon
  • ... on the permission first applied for in 2015 (renewed 5 Mar 2021)

... then please ask planners to either reject this change or treat it as non-material (section 64) – and not to extend the deadline.

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.

Add your objection to the 248 so far

Consultation ended 12 April. Until planners make their decision (expected Fri 3 May) you can still object.

Click the links below to object to all three applications – on the portal if you can (email if not)

In order for your objection to count, you must submit material objections (see key objections above). Minimum: a sentence or two – ideally several paragraphs.

**NEW: Both conditions ⑦ & ②

24/00247/FULObject on portal or email

Thank you to the 57 people who have objected so far

⑦ Reduced woodland protection

24/00031/FULObject on portal or email

Thank you to the 102 people who have objected so far

② Remove the word "except"

24/00030/FULObject on portal or email

Thank you to the 89 people who have objected so far

Need help using SBC's portal: First time user? Click here to register Need instructions? Step-by-step guide Forgot password? Reset password Having trouble? Contact us

SBC's help for submitting objections: instructions; postal address; phone number; and what planners will take most notice of ("material planning considerations").

Latest News

What are others saying?

Our Holyrood MSPs and Westminster MP

12 Apr 2024

Craig Hoy MSP objects re conditions 7 and 2

"It seems evident that these new applications ... would result in an effective resetting the clock on compliance with conditions originally granted on the basis that there was a specified time within which they should be met, weakening the very protections on affected woodlands the conditions are intended to ensure."

18 Mar 2024

Christine Grahame MSP objects to all 3 applications

"Please note that this is an objection in principle to the felling of any trees, certainly a reduction and not an increase on that previously permitted."

17 Jan 2024

Rt. Hon David Mundell MP objects re conditions 7 and 2

"I urge the Council to stand by the clear intentions of the conditions originally agreed."

Experts and statutory consultees

2 Apr 2024

Tweed Meadows Project Manager, Borders Forest Trust Trustee, Chair East Scotland Butterfly Conservation strongly urges SBC to continue protecting this important area for conservation

"Kingsmeadows House is a site of high biodiversity value and an important component of the wider ecosystem. The area is not only abundant in wildlife and ancient woodland indicator species, but important habitat restoration work has also been undertaken to further increase local biodiversity. Ancient woodland habitat is rare within the Scottish Borders and those remaining should be protected for the benefit of both the environment and people. I remain extremely concerned that any development within the woodland will have a significant negative impact on the wildlife both within and beyond this important site."

29 Mar 2024

Peebles Civic Society (PCS) strongly objects re conditions 7 & 2

"We believe that application 24/00247/FUL is an attempt to use Section 42 to create a new planning permission and therefore period of validity without taking into consideration current planning policy, as three years have now passed and 19/00182/PPP has now expired. If the applicants wish to develop the site, a new planning application will need to be submitted, which takes into account NPF4 and the new Local Development Plan."

23 Mar 2024

Chartered ecologist (CEnv, MCIEEM) with 30 years experience assessing ecological impact of development proposals in the Scottish Borders objects re conditions 7 & 2

"Kingsmeadows House and Policies are such an important asset to the biodiversity and public of Peebles as evidenced by the 509 objectors to the previous application. I remain very concerned about the cumulative impact of this development on the entire woodland area and it is vital that Scottish Borders Council continue to protect the whole conservation area."

20 Mar 2024

Peebles Community Council (PCC) objects to all 3 applications

"Kingsmeadows House and woodlands are a unique and irreplaceable resource, not just for Peebles but for the Scottish Borders as a rare and unique ecosystem."

"NPF4 now provides stronger protection due to the global climate crisis and the corresponding nature crisis that any future permissions should seriously take these into account."

25 Jan 2024

24 Jan 2024

15 Jan 2024


27 Mar 2024

26 Mar 2024

26 Mar 2024

25 Mar 2024

22 Jan 2024

17 Jan 2024

17 Jan 2024

We won't list objections from private individuals here unless you request us to add yours.

The fine print

What is a section 42 application?

Planning Circular 4/1998: the use of conditions in planning permissions

  • "Section 42 of the Act provides for applications for planning permission to develop land without complying with conditions previously imposed on a planning permission.
  • The planning authority can grant such permission unconditionally or subject to different conditions, or they can refuse the application if they decide that the original condition(s) should continue.
  • The original planning permission will continue to subsist whatever the outcome of the application under section 42."

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."

What is a planning obligation?

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."