Summary and implications

Potential changes to the country's planning policy have been proposed in a draft of the National Planning Policy Framework (NPPF) recently presented to the Government. The draft is notable for responding to the urgent need to simplify the planning system, as well as its attempt to create a framework to “pro-actively encourage growth”. At the same time, the courts have ruled that building demolition works may require planning permission and an Environmental Impact Assessment (EIA).

Publication of a recommended NPPF draft

The NPPF will revolutionise the current policy framework, made up of Planning Policy Statements, Planning Policy Guidance and Circulars, by consolidating it into one document.

The NPPF was announced by Greg Clark MP in 2010; who stated his intention to produce something that is:

  • Localist in its approach, handing power back to local communities to decide what is right for them;  
  • Used as a mechanism for delivering government objectives only where it is relevant, proportionate and effective to do so; and  
  • User-friendly and accessible, providing clear policies on making robust local and neighborhood plans and development management decisions.  

The Minister invited the public to contribute to the drafting process. The independent “Practitioners’ Advisory Group” submitted their draft on 20 May 2011 to aid the Government in the preparation of its own. The draft is 55 pages in length; a considerable reduction from the current policy framework which totals approximately 1,000 pages. The most significant feature of this is a ‘presumption in favour of sustainable development’. The draft is already proving contentious in terms of how it will work in practice. Unless clear guidance is provided, it may cause further delays and confusion in the planning system.  

The Government is expected to commence a formal consultation process on the proposed NPPF in July 2011. Greg Clark MP indicated at the Local Government Group’s recent conference that he would give careful consideration to the Practitioners’ Advisory Group’s draft.

Demolition and Environmental Impact Assessment

The Court of Appeal case R (on the application of Save Britain’s Heritage) v Secretary of State for Communities and Local Government concerned the owner’s proposal to demolish a 18th–20th century brewery in Lancaster.

Demolition is Development

The Court of Appeal held that the parts of the Demolition Direction which exempt the demolition of listed buildings, scheduled monuments, buildings in conservation areas and buildings other than dwelling houses from the need for planning permission was unlawful.

The effect of this ruling is that planning permission is now required for most demolition works. Permitted development rights for the demolition of certain buildings still exist, but a developer will need to apply to the local planning authority who will determine whether prior approval of the method of demolition will be required.

EIA – what is required?

As part of the same ruling, the Court held that demolition works were covered by the Environment Impact Assessment Directive. As a result, if the local authority considers that the proposed demolition works are likely to have a significant effect on the environment, it must issue a screening opinion on whether an EIA is required. The requirement for an EIA will mean that an application for planning permission must be made, overruling any permitted development rights.

Another recent case decided by the Court of Appeal has stressed the need for the local planning authority to give reasons for its decision, even where it concludes that an EIA is not required. There must be sufficient reasoning to show why the local planning authority came to its conclusion and that it has done so in accordance with the law.

What to do now

Where the description of development in the planning permission includes demolition the planning permission will authorize the demolition and no further planning permission will be required. Where the development works authorized by a permission necessitate the demolition of existing buildings or parts of buildings and the plans specifically refer to the demolition works, it can also be argued that permission for the development works also covers the demolition works. This is on the basis that not all the works required to carry out a development are necessarily listed in the description of development, but must be shown on the plans.

The obvious change will be where a developer is demolishing a site before or during the planning application stage, before planning permission is granted. Whilst an application for prior approval can be made, this can add time and cost to the development programme, especially as the local planning authority must now assess whether the proposed demolition works are likely to have a significant effect on the environment. If so, a planning application will be required and an EIA submitted.

It may be possible to implement a planning permission by demolition works without triggering Section 106 obligations if the definition of Implementation in the Section 106 Agreement explicitly excludes demolition.

As the application to appeal to the Supreme Court was refused, this case remains good law. The Government is considering the ruling and it will be interesting to see how it will respond.