Introduction
The rules on demolition have changed. A Court of Appeal ruling means all buildings will now require planning permission or prior approval for demolition. Previously only homes, listed buildings and buildings within conservation areas were affected. Now any factory, office, school, hospital or other commercial building will require approval. What is more the ruling has clarified that large scale demolition might also require an Environmental Impact Assessment (EIA) in its own right. The days of simply sending in the bulldozer are over.

What has changed?
The demolition of buildings and structures will now need approval through the planning process and might also require an EIA. This immediate change to the existing rules on demolition has come about as a result of a judgement in the Court of Appeal [R (Save Britain’s Heritage) v. SSCLG].

Prior Approval or Planning Permission?
The result of this judgement means if you do not have planning permission that permits demolition you will now need approval through a prior notification procedure. This prior notification is in two steps. First you apply to the local planning authority to see if prior approval is needed which takes up to 28 days. If it is not required then you can proceed with demolition (subject to possible building regulations and other legislative requirements). If it is required then an 8 week application process for prior approval follows. This application must show what the method of demolition is and any proposed restoration of the site.

Exceptions
Under present regulations planning permission or prior approval will not be required for the demolition of buildings with a volume of less than 50 cubic metres or enclosures (e.g. gates, walls, etc). However, Government is reviewing all present regulations following the ruling and the present exceptions may change.

Environmental Impact Assessment
Large scale demolition will now need to be screened to see whether an EIA is required. Potentially an EIA will be required to support a demolition application where significant impacts will result due to the scale or nature of the demolition. Asbestos removal and buildings that housed industrial processes are most likely to be targeted. This will mean additional costs and delay at the start of the process to provide reports and surveys as part of the evidence for an EIA screening and potential environmental statements.

Where development has already been approved (and supported by an EIA) but not started, DPP recommends an audit is undertaken to ensure demolition was adequately considered. A new screening opinion for live applications might be required where demolition was not specifically considered at the outset. In both circumstances there is a risk that an addendum to the EIA or a whole new EIA is required.

Heritage
In addition to the controls introduced due to the recent Court of Appeal ruling, the demolition of heritage assets and designated heritage assets, including listed buildings, scheduled monuments and buildings in conservation areas normally requires consent.

In relation to this it is important to emphasise that this control does not merely apply to structures covered by formal designation (e.g. listed building or scheduled ancient monument status). In addition, there are some local buildings/structures/archaeological remains that are identified as “heritage assets” but do not have a formal designation.

In respect of whether or not such demolitions require consent and thus whether a PPS5 Heritage Assessment will be required to be prepared it is advisable to seek specialist advice early within the preparation of such proposals to establish the significance of the assets affected by the proposals.

How will it affect me?
This ruling will affect anyone involved with demolition and site clearance and will affect sites with and without planning permission. Demolition is now considered ‘development’ and will be a material consideration for all planning applications and no longer just a process of implementing development.

Site clearance will need to be considered as part of the planning process. Removing difficult buildings that are potential threats to securing wider redevelopment cannot be simply removed at short notice. The prior notification procedure will make any intentions known to the local planning authority and to the wider public. Good relationships with the local planning authority will be ever more important as will early engagement with the authority and the local community in the development process where matters are sensitive. For example, the demolition of locally important buildings that are not listed or in conservation areas, but nevertheless deemed of value to the local community.

Timescales and delay to allow for the prior approval process will need to be factored into development programmes, particularly where EIA screening and potential environmental statement is required for demolition.

Applications for prior approval or notification of demolition may lead to further costs to remediate land following demolition. The local planning authority has a power to require ‘reasonable steps’ to be taken to leave the site in a condition that protects the public and preserves amenity, even as an interim measure where redevelopment will follow in the future. This may include surfacing with suitable materials; topsoiled and grassed and enclosed.

Background

This change to demolition rules is a result of a judgement in the Court of Appeal in March [R (Save Britain’s Heritage) v. SSCLG] which involved a decision by Lancaster City Council to authorise the demolition of a Brewery Building to allow for the redevelopment of the site. This appeal was heard after an application for a judicial review was dismissed in May 2010. This ruling found that the Demolition Direction was in breach of the EIA directive and as such is unlawful and no longer is in effect. This Direction had excluded the demolition of certain types of buildings (primarily non-residential buildings) from planning controls.

The prior approval process already exists and is currently used for the prior notification of demolition of dwellings and buildings adjacent to dwellings. The Government had advised that the expanded range of demolition projects will be considered in the same way as the existing prior approval process. The time period of the local authority to determine whether demolition requires prior approval is 28 days from the date of submission. If prior approval is required then a package of information along with an application fee is submitted with determination within 8 weeks.

The Government is currently considering the outcome of this case and its next steps.