Planning permissions in principle are usually subject to a time limit, and once that time limit is reached, no further AMC applications can be submitted. If not implemented, the planning permission will also expire.
In some cases, that issue can be addressed by seeking a variation of the planning permission in principle under section 42 of the Town and Country Planning (Scotland) Act 1997.
Section 42 allows for applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. Applications are sometimes made for planning permission without complying with the time limiting conditions previously attached.
It has previously been confirmed in case law that the grant of permission under section 42 constitutes an independent permission to carry out the same development as previously permitted, but subject to the new or amended conditions. In addition, the original planning permission is not superseded but remains extant and unamended.
An issue arose in the case of Granton Central Developments Limited v City of Edinburgh Council 2020 CSOH 73 as to the fees payable when submitting AMC applications under a planning permission issued under section 42.
The petitioner had applied under section 42 for planning permission without the time limiting conditions attached to an outline planning permission. This application was granted on appeal. The petitioner then sought to submit an AMC application. The planning authority declined to validate the AMC application on the basis that the wrong fee had been included with the application. The petitioner therefore raised a petition under judicial review seeking validation of the application.
Paragraph 5 of the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations 2004 imposes a fee cap where the cumulative total of fees paid for AMC applications in relation to a grant of planning permission in principle exceeds or equals the amount that would be payable on a new grant of planning permission in principle in relation to the whole development.
The petitioner argued that the AMC application was submitted under the same planning permission in principle, which had already reached the fee cap. They argued that the only difference between the 2003 permission and the section 42 permission was that in the latter the 15 year time limiting condition had been removed. They argued that the Fee Regulations ought to be construed purposively to allow for evolving practical considerations, and that the two permissions were identical in substance.
The Council argued that the previous planning permission could no longer be used to apply for AMC applications, as the time limit had expired. It was not correct to characterise the section 42 permission as extending the time limit in the original planning permission. It was a different grant of permission, without the time limit.
The Court agreed with the Council. It was held that it was incorrect to equiparate the original planning permission with the section 42 permission. They were entirely independent of one another. The fee cap therefore did not apply. As a result the fee due was £26,450, as opposed to the £401 tendered by the petitioner.
The Court also confirmed that the Council was not under a duty to validate the AMC application until the correct fee was tendered. The petition for judicial review was therefore dismissed.
This decision confirms that even if a section 42 permission is for all other purposes identical to the original planning permission, it is treated as a separate planning permission. Any fee cap previously reached would not apply to AMC applications submitted under the section 42 permission.
Morton Fraser acted for the planning authority in this action.
