Does demolition need consent?

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10 June 2011

The legal position, from a planning point of view, behind the demolition of buildings has recently changed following the case of The Queen (on the application of Save Britain's Heritage) and the Secretary of State for Communities and Local Government [2011] EWCA Civ 334 ("Save Britain's Heritage").  In the past demolishing a building, whilst being an activity that needed planning permission, was relatively simple, by virtue of a 1995 Direction from the Secretary of State.  That Direction excluded the demolition of most buildings from the definition of development, obviating the need to obtain planning permission or prior approval from local planning authorities. It was only the demolition of homes that required any consultation with the authorities.

However, in Save Britain's Heritage the Court of Appeal quashed the Secretary of State's 1995 Direction.  This means that demolition is now development which requires planning permission.

The demolition of existing buildings may be approved as part of your planning permission for redevelopment.  Alternatively, reliance can be placed on your permitted development rights which are set out in Part 31 of the General Permitted Development Order 1995.  These permitted development rights are granted subject to, among other things, the need for prior approval by the local planning authority.  The authority has 28 days to determine whether the proposed method of demolition and subsequent restoration of the site is acceptable.  Prior notification is not required where the demolition is either urgently necessary in the interests of health or safety or where demolition is taking place on land for which planning permission has been granted for redevelopment.  By its very nature retrospective prior approval for demolition will be very difficult to obtain.

However, there are two circumstances where Part 31 does not apply for demolition.  Firstly, and also from the Save Britain's Heritage judgment, demolition can now be Environmental Impact Assessment Development ("EIA Development").  This is more likely for large demolitions having significant environmental effects in sensitive locations.  Ultimately this will be for the planning authority to determine through a screening opinion.  If the demolition is EIA Development then Part 31 will not apply and full planning permission will be required.  Secondly, if the building is listed or in a Conservation Area then Listed Building Consent will be required prior to demolition.

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