Planning Circular 3/2013: Development management procedures

Annex I: Applications for Planning Permission Under Section 42 of the Act

1. Section 42 of the Act 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:

a. The effect of granting permission for a section 42 application is such that a new and separate permission exists for the development with different (or no) conditions attached. The previous planning permission remains unaltered by, and is not varied by, the decision on the section 42 application.

b. The duration of the new permission is specified in the Act. Alternatively, authorities may direct that a longer or shorter period applies. (See Annex H to this Circular.) ^[33]

c. 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.

d. The need to secure any section 75 legal obligation (or other agreement) to the new permission, where it is intended this should still apply.

Consultation and publicity

3. 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;
• There are reduced requirements concerning the content of section 42 applications (regulation 11(2) of The Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 ^[34] ('the DMR') refers);
• A reduced 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 The Conservation (Natural Habitats &c.) Regulations 1994 and the provisions of the Town and Country Planning Environmental Impact Assessment (Scotland) Regulations 2011.

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 lapsed or is incapable of being implemented.

6. Where it is considered that permission should be granted subject to different conditions or no conditions, a new permission should be granted and all conditions 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 effect the previous permission or its conditions.

8. Where a new permission is granted, the new duration will be as specified in Section 58 or 59 of the Act. However, it would be possible for the planning authority to direct that an alternative time period applies. Annex H of this Circular refers.

9. In terms of section 42(4), section 42 does not apply if the permission was granted subject to a condition as to the time within which development was to be begun, and that time period has expired without the development having been begun. Following changes made through the Planning etc. (Scotland) Act 2006, there will be limited circumstances where this will be the case.

10. Since 3 August 2009, the duration of a planning permission is specified in section 58 or 59 of the 1997 Act as appropriate, as are the time limits for making applications for requisite approvals under a PPP. The duration of a planning permission (and in the case of a PPP the time limits for making applications for requisite approvals) can be altered by direction but (other than for the purposes of appeals or local reviews) they are not conditions subject to which the previous planning permission was granted. Section 42 therefore does not apply in relation to non-compliance with these timescales.

Summary:

• The effect of granting a section 42 application is such that a new permission exists for the development with different or no conditions attached.
• Planning authorities should attach to the new permission all of those conditions from the previous permission, where it is intended these should apply and ensure (where appropriate) that permission is granted subject to the conclusion of any appropriate planning obligation.
• The duration of the new permission will be as specified in Section 58 or 59 of the Act, unless the authority granting planning permission directs otherwise.