Tuesday, 29 March 2011

EIA required for demolition


Alarm and despondency has been caused throughout the construction industry by the judgment of the Court of Appeal delivered last Friday (25 March) in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334. This concerns the consents which may be required for the demolition of buildings.

There was always an element of doubt as to whether or not demolition amounted to development, but that doubt was resolved by an amendment to Section 55 of the 1990 Act made in 1991. The way this was dealt with was in itself somewhat convoluted, and I set out the basic rules (as we all thought they applied until the end of last week) in an article entitled “Demolition in Wonderland” which I wrote quite a few years ago, reproduced below as an annex to this post.

The position has subsequently been complicated by superimposing on our planning system the requirement for Environmental Impact Assessments in certain cases. This has never fitted at all well with the UK planning regime, and has thrown up a number of anomalies over the years, which have had to be tackled piecemeal; for example it was originally assumed that EIA would not be required in respect of an application for consent to details (i.e. the approval of reserved matters) where an outline planning permission had previously been granted. The European Court decided otherwise.

Another point which has had to be clarified is that EIA may be required in respect of development which is Permitted Development under the terms of the GPDO. If a screening opinion confirms that EIA is not required, then the permitted development can go ahead, but where there is a requirement for EIA the development cannot then be permitted development, and an application for express planning permission will be required.

It was not unreasonably assumed that if certain operations did not come within the definition of development under Section 55 of the 1990 Act, then no requirement for EIA could arise. In principle, this still applies, but so far as demolition is concerned, its exclusion from the definition of development is dependent on the direction made by the Secretary of State under s.55(2)(g). It is this direction which was found by the Court of Appeal to be legally defective.

The Court of Appeal therefore granted the relief sought by SAVE including declarations that:

(i) Demolition of buildings is capable of constituting a project falling within Annex II of the EIA Directive; and

(ii) Paragraph 2(1)(a)-(d) of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 (“the Direction”) is unlawful and should not be given effect.

Contrary to what the Mad Hatter told Alice (see below), the wording of Part 31 in the Second Schedule to the GPDO is not confined to dwellinghouses and buildings adjoining dwellinghouses. Up to now it has in practice been confined to that narrow category of buildings, because everything else was covered by the Secretary of State’s direction (or so we thought). The effect of the Court of Appeal’s judgment in the SAVE case is now to bring a rather wider category of buildings within the scope of Part 31.

Thus, in many cases, the practical effect of the SAVE judgment will be fairly minor – demolition, instead of being excluded from the definition of development will be Permitted Development, and will be subject to the prior notification procedure under Part 31 (in addition to the similar requirement under the Building Act). But there will undoubtedly be cases, and the proposed demolition of the Lancaster brewery would appear to be one of them, where the scale or nature of the proposed demolition may be such as to give rise to a requirement for an EIA. At the very least, there will be a requirement for a screening opinion, and if that results in a requirement for a full EIA, then the demolition will no longer be PD but will require express planning permission.

Permission to appeal to the Supreme Court in the SAVE case was refused by the Court of Appeal, who also refused to stay their order, but the developers, or possibly the Secretary of State, may well apply to the Supreme Court itself for permission to appeal. Thus we may not yet have reached a definitive position on this issue.

© MARTIN H GOODALL

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DEMOLITION IN WONDERLAND

Alice found herself in a part of Wonderland she had not seen before. She was in a street in a big city outside a large building. There was a rather tarnished plaque on the wall by the door, which said - “Office of the Deputy Prime Minister”. Over this someone had pasted a scribbled notice, slightly smudged by haste and rain, which read “Department of Communities and Local Government”.

Suddenly the glass doors parted with a swish, and Alice peered inside. The White Rabbit was rushing across the hallway looking at his watch. Alice would have run away, but before she could do so the White Rabbit had taken her by the arm and was propelling her across the hall.

“Come along. We’re late for the meeting,” he said, and ushered her into a lift, which whisked them up to the top floor.

They stepped out into a large office with a huge table at the far end. Seated at the table were the Mad Hatter, the March Hare and the Dormouse. A heated argument was going on.

“Well, is demolition development or isn’t it?” asked the March Hare testily.

“Yes, it is,” Alice exclaimed brightly. Everyone turned round and looked at her.

“Who asked you?” demanded the Mad Hatter.

“Well, she’s right, or at least she would be if she were,” squeaked the Dormouse, “except, of course, when it isn’t.”

“I thought this was all sorted out in the Planning and Compensation Act 1991,”
observed the White Rabbit.

“Yes, of course it was,” said the Mad Hatter. “Demolition now constitutes development, except when I say it doesn’t. Nothing could be simpler!”

“That’s silly!” exclaimed Alice.

“No it’s not,” said the White Rabbit. “Demolition is now included in the definition of building operations in Section 336 of the 1990 Act and, by Section 55 of that Act, building operations are included in the definition of development. So demolition is development.”

“Except when it isn’t,” murmured the Dormouse dreamily.

“What does he mean?” asked Alice.

The White Rabbit puffed out his chest importantly. “The Secretary of State has power under paragraph (g) of sub-section (2) of Section 55 (as amended, of course) to make a direction that certain types of demolition shall not constitute development.”

“I have the honour to be the Secretary of State,” the Mad Hatter interjected.

The White Rabbit harrumphed.” …….and she (or, to be precise, one of her predecessors) has consequently made the Town and Country Planning (Demolition –Description of Buildings) Direction 1995 (which is published as an annex to DOE Circular 10/95) whereby demolition of the following descriptions of building is not to be taken to involve development, viz and to wit…….”

“Oh, spare us the list. Please!” the Dormouse squeaked.

“Well,” said the White Rabbit, somewhat crestfallen, “basically the list covers everything except dwellinghouses.”

“And buildings adjoining dwellinghouses,” added the Dormouse.

“So you mean to say that I need planning permission to demolish a house?” asked Alice.

“No!!!” they all chorused. Alice looked thoroughly confused (which is hardly surprising, because she was).

“We amended the General Permitted Development Order,” explained the Mad Hatter, “so that demolition of a dwellinghouse is permitted development, so it doesn’t require express planning permission. It’s covered by Part 31, in the Second Schedule.”

“Well, what a complicated way to go about it!” Alice exclaimed. “All you’ve done in the end is to say that you don’t need permission to demolish a building; which is what everyone thought in the first place!”

“Ah, but that doesn’t mean you can just go ahead and demolish your house,” observed the March Hare. “Oh, dear me, no.”

“Then, what do I have to do?” asked Alice.

“Part 31 requires that you must give prior notification to the local planning authority,” said the White Rabbit, “so that they can determine whether their prior approval will be required to the method of the proposed demolition and any proposed restoration of the site.”

“Well, then,” queried Alice, “after that (assuming either that the council decides it doesn’t need to approve the method of demolition, or it approves the details I put in), then can I go ahead and demolish it?”

“Er, well, no, not quite.” It was the Dormouse who had piped up again. “You also have to give six weeks’ notice under Section 80 of the Building Act 1984 of your intention to commence the demolition. Within that time, the council can serve a notice requiring you to carry out works on the site, such as shoring up adjoining buildings and so on.”

“That doesn’t just apply to the demolition of houses, of course,” the March Hare pointed out. “The requirement to give notice under the Building Act applies to all demolition.”

“Then, of course, you would need Listed Building Consent if it were a listed building,” mused the White Rabbit.

“Or Conservation Area Consent if it’s in a conservation area,” the Dormouse added.

Alice was beginning to feel giddy. The room seemed to be spinning round faster and faster.

“What’s the matter with her?” asked the March Hare.

“She’s just fainted,” said the White Rabbit.

“That’s the trouble with youngsters today,” sniffed the Mad Hatter. “No stamina.”

There was a pause.

“We didn’t mention gates, fences and walls” whispered the White Rabbit.

“Another time, perhaps,” the March Hare suggested.

[These last two lines referred to the ‘cock-up’ that was made with the original version of the Direction, which had led to the entirely unintended consequence that express planning permission was theoretically required for the demolition of gates, walls, fences and other means of enclosure. The original version of my article had continued to poke fun at what at that time was the DOE over this faux pas, which was eventually corrected.]

© MARTIN H GOODALL

3 comments:

Theplannerman said...

Excellent Martin. This highlights just how farcical the planning has become as the system increasingly trends toward the fantasy end of humane existence. However, as we go into the era of 'barrier busting' I fear we will be moving from 'Alice in Wonderland' to the realms of Terminator. Ian

Anonymous said...

Am I correct in understanding that the SAVE decision is retrospective in its effect, in that the the 1995 Demolition Direction was unlawful as soon as the 1999 EIA Regs came into force and, as such, any development relying on demolition as the implementation of the permission is 'suspect' if that permission did not expressly include demolition and is not EIA development?

If so, would it be the case that a demolition carried out before the SAVE decision could not be said to have lawfully implemented the development unless the demolition was expressly included in the consent and the development is not EIA?

Martin H Goodall LARTPI said...

I don’t think I would agree with the proposition stated above. The issue goes to the validity of the permission itself, not to the lawfulness of the development carried out in reliance on the permission.

A planning permission must be regarded as valid until or unless quashed by the High Court. An application to quash would have to made promptly and in any event within three months, unless there were very exceptional circumstances for extending time. The court has a discretion not to quash, even if the permission is legally defective, and carrying out the development in reliance on the permission in the meantime would appear to be a very strong argument against a quashing order being made by the court.