Introduction

The case of City of Edinburgh Council against the Scottish Ministers and (First) Granton Developments Ltd and (Second) Lester Gibbons ([2020] ScotCS CSIH_13) adjudicated by the Scottish Court of Session on April 9, 2020, centers on the complexities of extending planning permissions under section 42 of the Town and Country Planning (Scotland) Act 1997. The City of Edinburgh Council appealed against the reporter's decision to allow developers to proceed with their development at Granton Harbour without adhering to a condition set in their 2003 outline planning permission. The crux of the dispute revolved around whether the application to extend the permission constituted a new planning permission or merely an amendment to the existing one.

Summary of the Judgment

The Inner House, led by Lord President Lord Menzies and Lord Drummond Young, upheld the reporter's decision to grant an extension of time for the developers. The original 2003 planning permission included conditions related to the timely approval of reserved matters. The developers, seeking an extension under section 42, aimed to add five years to the existing timeframe. Despite the City of Edinburgh Council's opposition, the court found that the extension was justified based on the substantial progress made, alignment with the current Local Development Plan (LDP), and the economic and social benefits of the continued development.

The court also addressed a motion to postpone the hearing related to a judicial review by the developers, which was ultimately refused, maintaining the integrity of the reporter's decision.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shaped its reasoning:

• Pye v Secretary of State for the Environment [1999] PLCR 28: Explored the scope of section 42 applications and the circumstances under which they might amount to new permissions.
• Lambeth LBC v Secretary of State for Housing, Communities and Local Government [2019] 1 WLR 4317: Further clarified the application of section 42 in the context of extending planning permissions.
• Moray Council v Scottish Ministers [2006] SC 691: Provided guidance on the duty to give reasons in planning decisions.
• South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953: Highlighted the importance of adequate reasoning in planning decisions to prevent unreasonable prejudice.
• Uprichard v Scottish Ministers 2013 SC (UKSC) 219: Emphasized the need for clear and intelligible reasons in planners' decisions.

These precedents collectively informed the court’s approach to interpreting section 42 applications, especially concerning the balance between technical procedural compliance and substantive planning merit considerations.

Legal Reasoning

The court’s legal reasoning was anchored in the interpretation of section 42 of the Town and Country Planning (Scotland) Act 1997, which allows for applications to proceed with development without complying with certain conditions of an existing planning permission. The key points in the court’s reasoning included:

• Nature of Section 42 Applications: The court acknowledged that while section 42 applications typically focus on varying specific conditions, in cases where substantial development has already commenced, the application can amount to a new permission.
• Material Considerations: The court assessed whether the existing progress, economic benefits, and alignment with the current LDP constituted material considerations that justified extending the permission without a fresh comprehensive review.
• Implementation and Practicality: Given the significant investment and development already undertaken, requiring a new agreement or permission was deemed impractical and counterproductive to both development continuity and local housing needs.
• Compliance with Current Policies: The extension was consistent with the 2016 LDP, specifically Policy Del 3, which supports the creation of new urban quarters and emphasizes housing-led regeneration.
• Reasonableness of Existing Agreements: The existing section 75 agreement, which included provisions for affordable housing and infrastructure contributions, was found to be reasonable and adequately fulfilled by the developers.

By meticulously analyzing these elements, the court concluded that extending the existing permission was both legally and practically justified.

Impact

This judgment has several significant implications for Scottish planning law:

• Clarification of Section 42 Scope: The case clarifies that section 42 applications can effectively serve as new permissions when substantial development has been initiated, particularly when aligned with current planning policies.
• Emphasis on Material Progress: It underscores the importance of considering the actual progress and investment made under an existing permission when evaluating extensions or variations.
• Balancing Continuity and Policy Alignment: The decision highlights the need to balance continuity of development with adherence to current policy frameworks, ensuring that extensions do not contravene established planning objectives.
• Guidance on Reasoned Decisions: Reinforces the necessity for reporters and planning authorities to provide clear, comprehensive reasoning in their decisions to withstand legal scrutiny.

Future cases involving section 42 applications will likely reference this judgment to determine the appropriate balance between procedural flexibility and maintaining rigorous adherence to planning policies.

Complex Concepts Simplified

Section 42 Application

A legal mechanism that allows developers to proceed with their project without meeting certain conditions of an existing planning permission, typically used when they seek to alter or extend the original permission.

Planning Permission

Official approval granted by a local authority to carry out specific types of development on a piece of land or property.

Local Development Plan (LDP)

A strategic plan adopted by a local authority outlining the vision, objectives, and policies for the development and use of land within its jurisdiction over a set period.

Section 75 Agreement

An agreement between the developer and the planning authority detailing obligations such as the provision of affordable housing, infrastructure contributions, and other community benefits as part of the development.

Reserved Matters

Specific details of a development project that are not covered in the outline planning permission and require separate approval, such as building design, landscaping, and access arrangements.

Conclusion

The City of Edinburgh Council v Scottish Ministers & Granton Developments case serves as a pivotal reference point in Scottish planning law, particularly concerning the application and interpretation of section 42. By affirming the flexibility to extend planning permissions in contexts where substantial development aligns with current policies and fulfills material considerations, the judgment strikes a balance between facilitating ongoing projects and upholding strategic planning objectives.

This decision not only supports the pragmatic continuation of large-scale developments but also reinforces the necessity for clear, reasoned decision-making within the planning process. As urban landscapes continue to evolve, such jurisprudence ensures that legal frameworks remain robust yet adaptable, fostering responsible and policy-compliant growth.