UK: Demolition - Is Required (Or Not - That Is The Question)

Last Updated: 9 August 2011
Article by Murray Shaw

The definition of development is given in Section 26 of the Town & Country Planning (Scotland) Act 1997 (as amended). Sub-Section 4 makes clear that "building operations" (which do constitute development) include "demolition of buildings".

However that apparently straightforward position is the subject of two other relevant sets of provisions which (until recently) have in effect meant that planning permission was not in fact generally required for demolition.

Class 70 of the General Permitted Development (Scotland) Order (SI1992 223) deals with demolition and exempts from the need to obtain planning permission demolition of a complete building subject to certain exemptions. Unless however the demolition is urgent or necessary on the grounds of safety, there is a requirement to apply to the planning authority to ascertain whether prior approval from the planning authority of the means of demolition and any consequent restoration will require to be obtained. There may also then be a requirement for neighbour notification. If the planning authority does indicate that their prior approval is necessary then no demolition works can take place until that approval (in relation to the means of demolition and the restoration of the site thereafter) has been given.

Separately in 2001 the Scottish Government issued a Circular (Circular 1/2001) with the snappy title of "The Town & Country Planning (Demolition which is not Development) (Scotland) Direction". This Circular was made in terms of Section 26 of the Act and in effect provided that the demolition of certain types of building would not constitute development (notwithstanding the other provisions of Section 26). In effect this exempted from the need to obtain planning permission the demolition of certain buildings which were subject to other controls (such as listed buildings) and some other buildings (excluding dwellinghouses and buildings in excess of a specified size). The Circular (like the Permitted Development Order) only applied to demolition of a whole building and not partial demolition.

The consequence of this Circular read alongside the Permitted Development Order was that demolition of most complete buildings would not require planning permission though it might be necessary to go through a prior notification/approval procedure identified in the Permitted Development Order.

However in 2009 the European Court of Justice ruled that Ireland had not properly transposed into their domestic law the EIA Directive. In effect the court held that demolition could be a "project" for the purpose of the EIA Directive and therefore might require environmental assessment. That ruling was followed by the Court of Appeal in England in a case brought by Save (the heritage body). In this decision (R (Save Britain's Heritage) v The Secretary of State for Communities and Local Government 2011 EWCA CIV334) the Court of Appeal accepted the European ruling. The particular consequence in that case was that the proposed demolition of a listed brewery site in Lancaster, England could not proceed.

The more direct consequence for Scotland (though that decision would be likely to follow in the Scottish Courts) is that the Scottish Ministers had now revoked the 2001 Circular because of the need to comply with the EIA Directive.

In effect this means therefore that demolition in all circumstances will be subject to planning control and planning permission will be required except to the extent that Permitted Development Rights can be relied upon. In practice this means either that there will be more applications made to clarify whether prior approval is necessary (as provided for in terms of the Permitted Development Order) or full applications will be made for planning permission (possibly the demolition being clearly described as an integral part of the application sought). However if a development relates to a project identified in Schedule 1 to the EIA Regulations (where environmental assessment is mandatory) permitted development rights will not apply at all while in relation to Schedule 2 projects (where environmental assessment may be required) they may not apply (a screening opinion or screening direction will need to be obtained).

In practice up until now it has not been unknown for buildings to be demolished either relying upon Permitted Developments Rights or the Circular with a view to the fact that the site is then a gap site or vacant site being relied upon as a material consideration in relation to the application for planning permission. It will not now be so easy to bring about such a situation.

The Scottish Government are apparently giving consideration as to whether Class 70 of the Permitted Development Order should be extended to take account of the position which now prevails. The interplay between the 1977 Act, the Permitted Development Order and the Circular was not always clear. The position is now clearer but where demolition is an integral part of the planning process careful consideration will need to be given as to how best to secure any necessary consents or permissions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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