Scottish court allows extension to marina development in section 42 dispute

The council was appealing a decision to extend the planning permission for the development of the Granton Marina near the city by five years. It had initially refused to grant the extension, saying that the developers were applying for new planning permission instead of amending the original permission.

Last year a Scottish government inspector, known as a reporter, allowed the developers’ appeal, granting their request to amend one condition of the original permission to reflect the new deadline of 20 June 2023. The reporter said extending planning permission would enable the developers to maximise the potential of the site, particularly when it came to delivery of housing, and noted that delays to the project could be attributable to events outside the control of the parties involved, such as the 2008 recession.

Section 42 of the Town and Country Planning (Scotland) Act 1997 applies to applications to develop land without compliance with conditions attached to a previous planning permission.

In a judgment (22 page / 649KB PDF) on behalf of three judges dismissing the council’s appeal, Lord President of the Court of Session Lord Carloway said the Court should not interfere with the judgement of the reporter to allow the development to continue without substantial delay, instead of requiring the developers to apply for a completely new permission.

Planning law expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law, said the case was a rare example of a section 42 application reaching the courts.

“Having been decided by a three-judge bench it will be authoritative in Scotland and of interest throughout the UK,” Connal said.

“It is also important because it touches on an obvious issue – particularly topical at the present time – where a major development will take many years to build out and is at risk of being impacted by unexpected financial and other events. The reporter's decision, which was upheld, allowed for flexibility whereas the local authority position could have led to the development stalling or dying due to changes in policy being firmly applied,” Connal said.

Connal said that it was often assumed from a legal perspective that section 42 was a mechanism for a strictly confined exercise focused only on the condition, or conditions, and therefore there was little or no risk of the principle of the planning permission being revisited – and thus the consent being at risk.

“However perhaps somewhat controversially the court reasoned that as the technical result of section 42 is a new permission – minus the condition or conditions – the decision would have to be made in accordance with the (current) development plan. So if the permission had not been commenced it might be necessary to revisit the whole principle – notwithstanding that section 42 says only the condition can be looked at,” Connal said.

Connal said the court had held that a part-implemented permission would be in a different category and it might not be reasonable to apply new policy with “full force”.

“Of course that creates a judgement call for the decision maker which must mean the result is open to uncertainty. In this case that judgement call by the reporter, in favour of the developer, was upheld,” Connal said.