Section 42 consents are often referred to loosely as "variations" reflecting the way they are used, but their legal status as new, "standalone" permissions is well established. How then should planning authorities determine such applications in practice? This question may be less well understood.

Helpful then to have the Scottish court's restatement of the key principles, in a statutory appeal by City of Edinburgh Council against the grant of section 42 consent for the large mixed use scheme at Granton Harbour (originally promoted by Forth Ports).

The application was submitted to extend the life of the original outline permission, granted in 2003, which required all AMSC applications to be submitted within 15 years. Following a deemed refusal, the appeal Reporter granted the section 42 consent.

While the arguments before the court ultimately focussed on the adequacy of the Reporter's reasons, the court set out the following principles which apply to section 42 decision making:

  • Section 42 applications must be considered in terms of the (current) development plan and any relevant material considerations;
  • While authorities should consider only the conditions to which any new permission should be granted (section 42(2));
  • This does not prevent consideration of the overall effect of granting the consent (recognised in Scottish Government Circular 3/2013);
  • This is particularly relevant where the previous permission has lapsed or is incapable of being implemented;
  • In such cases, this may involve reconsideration of the principle of development in light of any material change in the development plan policies, but will not require consideration of new in every case,
  • Factors such as part implementation of the original permission will be relevant and may support less weight being accorded to current policies.

In this instance, the court was satisfied that the Reporter had taken the correct approach despite some loose language and the grant of permission was upheld.

Given the increased reliance by developers on section 42 applications for value engineering and additional flexibility, as well as extensions of time, it's important that applicants and planning authorities at least start on the same page.