Edinburgh City Council loses planning appeal over waterfront development

The City of Edinburgh Council (the appellant) originally refused Granton Central Developments (the developers) permission to continue with their planned development at Granton Harbour without adhering to a condition regarding the time limit In which they could seek approval for reserved matters.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Drummond Young.

Mixed-use development

The original outline planning permission was granted to Forth Ports plc in June 2003 to allow for a mixed-use development at Granton Harbour which was to include residential, commercial, and hospitality elements, as well as a marina. An attached condition stated the following: “1 (a) Application for the approval of the under-noted reserved matters [be] made within fifteen years of the date of the Outline Permission, (except where an application for approval of any reserved matters has been refused or an appeal against such refusal has been dismissed, in which case one further such application may be made within six months of the date of such refusal or dismissal, even though fifteen years from the date of the Outline Permission have expired). (b) The approved development [be] commenced no later than fifteen years from the date of the Outline Permission or two years from the date of the final approval of any reserved matters, whichever is the greater.”

The site was acquired by the developers in 2014. In March 2018 they applied to amend the listed conditions. This was followed by a planning application under the same terms in April 2018 i.e. an extension of time. This application was deemed to have been refused by the appellant.

In November 2016 the appellant adopted a Local Development Plan which included scope for the “regeneration” of the Edinburgh waterfront. The developers appealed to the Scottish Ministers in November 2018, contending that the development was necessary for the regeneration of the waterfront and to meet housing targets as required by the 2016 LDP.

The appellant contended that, in seeking an extension for the 2003 application, the developers were seeking a new permission, and they were entitled to reconsider all existing conditions considering the current LDP’s development principles. The appeal was allowed, amending the deadlines in the first condition to January 2023. The council appealed this decision to the Court of Session.

No substantial doubt 

The opinion of the court was delivered by Lord Carloway. Addressing each of the appellant’s five appeal grounds in turn beginning with their contention that the reporter was unaware they would effectively be granting a new permission, he began: “The decision letter does not suggest that the Reporter was unaware that its effect was to grant a new permission. The letter commences with the words ‘I allow the appeal and grant planning permission subject to the 22 conditions listed …’. This makes it clear that the Reporter did know that he was granting a new permission.”

He continued: “The Reporter states in terms that he did not consider that allowing the appeal would conflict with that policy which states that permission would be granted for development which contributed towards the creation of new urban quarters on the site.”

On the second ground, that the reporter failed to recognise the need for a new agreement under section 75 of the Town and Country Planning (Scotland) Act 1997, he said: “[T]he Reporter considered the practicalities of renegotiating a new section 75 agreement, when the existing one continued in force in respect of the original permission and had in substantial part been implemented. The conditions refer to the necessity of concluding an agreement ‘prior to the issue of consent’. Such an agreement had been concluded, albeit that it is the one which was formulated for the 2003 permission. The Reporter considered that the subsisting agreement’s requirements were ‘reasonable’ and have been, and are being, complied with. If there is an issue, about the continued application or the interpretation of the existing section75 agreement, that can be resolved in due course. As matters stand, it remains relevant to the new permission.”

On the third ground, that the reporter’s consideration of outstanding approval decisions was irrelevant, he said: “[T]his was not the type of situation in which an outline permission had lain dormant for years and the application was one which was seeking to resurrect an unimplemented consent. It was a living permission involving a continuing process of reserved matter approvals over time. The nature of this progress was important when determining whether the original timescale should be extended.”

In relation to the fourth ground, applying previous dicta regarding the process of making planning decisions, he commented: “[T]he decision letter is clear and concise. It does not leave the informed reader in any doubt about the Reporter’s reasons. He determined, as a matter of planning judgment, that, having regard to the LDP policy which he cited and the other material considerations, notably the part implementation of the original permission and the continuing nature of the development on the site, the time for approval of the remaining reserved matters ought to be extended. The reason for that was to allow the development to continue, without substantial delay, rather than to require the developers to apply for an entirely new permission. It was not necessary, on that line of reasoning, to engage in any detail with submissions about changes in certain other aspects of the LDP, such as increased contributions, flood related issues, cycling routes and open space or play areas which would not have altered the decision.”

On the fifth ground, relating to housing shortfall, he added: “[I]t may be that, having regard to the most recent figures, the planning authority’s programme to complete the assessed required number of housing units is on track for a successful completion. There may be no ‘shortfall’ in that sense. However, the Reporter is to be taken to be referring simply to the existing demand for housing in the city and the well-recognised need for the authority to have, as it does, a programme for completions over a given period. New units in Granton Harbour will contribute to that programme, whether currently formally included in the programme or not.”

For these reasons, the appeal was refused.