The way the planning system treats demolition has long been a source of confusion and the Court of Appeal has recently complicated matters further in yet another example of the broad reach of the environmental impact assessment regime.
Until recently the demolition of any building other than a dwellinghouse (or any building adjoining a dwellinghouse) was exempted from the need to secure planning permission by virtue of the Town and Country Planning (Demolition - Description of Buildings) Direction 1995 (‘the Direction’).
This has changed as a result of the Court of Appeal’s decision in the case of Save Britain’s Heritage v Secretary of State for Communities and Local Government. The position is now that the demolition of any building falls within the meaning of development and so requires planning permission.
The decision was based on the judges’ view that the demolition of a building is capable of being a project falling within the scope of the European environmental impact assessment (‘EIA’) regime so that its likely significant environmental effects need to be assessed before it can proceed. Because the UK has grafted the EIA regime onto the planning system, this led the judges to conclude that excluding demolition from the planning system could not be lawful and so crucial parts of the Direction were quashed.
Comment: The Government has not yet decided how to respond, but what is clear is that demolition is now fully within the control of the planning system.
The demolition-related permitted development rights set out in Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (‘the GDPO’) are unaffected and may allow many demolitions to take advantage of the prior approval process rather than need a full planning application. But these rights do not apply where the proposal is EIA development.
It also means that anyone considering carrying out demolition needs to think about the need to obtain a screening opinion to establish whether there are likely to be significant environmental effects (so that EIA applies) before being able to determine whether permitted development rights apply or whether an express planning permission is required.
Local planning authorities will also need to be alive to the possible need to screen proposals that are submitted to them for prior approval under the GDPO and to require a full planning application if there are likely to be significant environmental effects.