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

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

35. Planners can consider "the overall effect of granting a new planning permission."
36. "Any decision on whether to grant the [S42] application must be in accordance with the current development plan" – NPF4 in this case
37. "Where the development has not yet commenced" planners "may reconsider the principle of development in light of any material change in policy"
38. 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.

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.

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?

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.

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.

What is a section 42 application?

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."