Planning circular 3/2022: development management procedures

Annex H

Applications for Planning Permission Under Section 42

1. Section 42 applies to applications for a new planning permission or new planning permission in principle for a development but with different conditions from those attached to a previous permission for that development.

Background

2. Planning authorities will wish to note the following in relation to Section 42 applications:

• Section 42(4) specifies that section 42 does not apply if the previous permission was granted subject to a condition as to the time within which the development to which it related was to be begun, and that time has expired without the development having been begun.
• The effect of granting permission for a section 42 application is such that a new and separate permission exists for the development. The planning authority must refuse the application if it decides that planning permission should be subject to the same conditions as the previous planning permission. The previous planning permission remains unaltered by, and is not varied by, the decision on the section 42 application.
• The need to attach to the new permission any of the conditions from the previous permission which it is intended should apply to the new planning permission.
• The need to secure any section 75 legal obligation (or other agreement) to the new permission, where it is intended this should still apply.
• Unless legislation states otherwise, the statutory requirement on applications for planning permission and planning permission in principle apply, as the case may be, to applications under section 42 for planning permission or for planning permission in principle.

Key Differences in Statutory Requirements for Applications under Section 42

3. As indicated, statutory requirements concerning the consultation and publicity of planning applications, and in respect of decision notices etc., apply to section 42 applications unless otherwise stated. The key differences are:

• There is no requirement for pre-application consultation on section 42 applications (section 35A);
• There are specific requirements concerning the content of section 42 applications (regulation 11(2) of the DMR; and
• A flat-rate fee applies to section 42 applications.

4. Requirements set out in other legislation apply as for any application for planning permission and include, for example, the requirements of Habitats Regulations and the provisions of the EIA Regulations.

Determining a Section 42 application

5. In determining a Section 42 application, authorities may consider only the issue of the conditions to be attached to any resulting permission. However, in some cases this does not preclude the consideration of the overall effect of granting a new planning permission, primarily where the previous permission has since lapsed or is incapable of being implemented.

6. Where it is considered that permission should be granted subject to different conditions (see paragraph 2 of this Annex), a new permission would need to be granted with all the conditions to which the development should be subject attached.

7. If it is considered that planning permission should be granted subject to the same conditions as the previous permission, the section 42 application should be refused. The making, granting, or refusal of a section 42 application does not alter or affect the previous permission or its conditions.