Demolition exemption direction amended (at last)

I am very grateful to Richard Harwood QC of Thirty Nine Essex Street Chambers for drawing our attention to The Town and Country Planning (Demolition – Description of Buildings) Direction 2014. This replaces the 1995 Direction, omitting the categories of demolition that the Court of Appeal declared to be unlawful in R (SAVE Britain’s Heritage) v. SSCLG [2011] EWCA Civ 334. (See my piece in this blog under the title “EIA required for demolition”, dated Tuesday 29 March 2011). It has only taken De-CLoG three years to get around to this!

Except as mentioned below, the Direction provides that the demolition of any building with a cubic content not exceeding 50 cubic metres and the demolition of the whole or any part of any gate, fence, wall or other means of enclosure is not to be taken for the purposes of the 1990 Act [section 55(1A)] to involve development of land.

The exceptions to the Direction reflect one or two other minor changes that have taken place since 1995. Thus the exemption promulgated by the Direction does not extend to the demolition of the whole or any part of any gate, fence, wall or other means of enclosure in a conservation area. Nor does the Direction extend to the demolition of part of a building, other than part of any gate, fence, wall or other means of enclosure.

Partial demolition would in any event amount to a structural alteration of the building and so would be a building operation within the meaning of Section 55(1A) on that basis alone, as paragraph 3 of Circular 10/95 (now cancelled following the publication of the NPPG) confirmed. Partial demolition (except the partial demolition of any gate, fence, wall or other means of enclosure anywhere other than in a conservation area or within the curtilage of a listed building) is therefore development requiring planning permission, although it may be permitted development under other parts of Schedule 2 to the GPDO, for example, Parts 1, 6 and 8, among others.

As I noted when reporting on the judgment in the SAVE case, the Direction is now very limited in its effect, although of course most demolition which is not exempted by this Direction from the definition of development is in fact permitted development under Part 31 of the Second Schedule to the GPDO.

In this connection, it is worth noting that the exclusion from the definition of a “building” in Article 1(1) of the GPDO of any gate, fence, wall or other means of enclosure does not apply to Class B of Part 31. So (other than in a conservation area and within the curtilage of a listed building) the demolition, in whole or in part, of any gate, fence, wall or other means of enclosure was in any event permitted development under Part 31, Class B, and this was not subject to any exclusions or conditions, and no prior notification under Part 31 is required in this case, in contrast with the prior notification requirement that applies to the demolition of other structures.

So far as concerns the demolition in whole or in part of any gate, fence, wall or other means of enclosure in a conservation area, the new direction simply reflects the provisions of the(Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013), whereby, with effect from 1 October 2013, the demolition of the whole or part of a gate, fence, wall or other enclosure to buildings in a conservation area requires planning permission.

As a result of the judgment in Shimizu (UK) Ltd v. Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481, partial demolition of a listed building amounts to alteration of that building rather than demolition. It will nevertheless require Listed Building Consent under sections 7 and 8 of the Listed Buildings Act if this would affect its character as a building of special architectural or historic interest, as it almost certainly will.

Finally, by section 1(5) of the Listed Buildings Act, any object or structure within the curtilage of a listed building which, although not fixed to the building, forms part of the land and has done so since before July 1 1948, is to be treated as part of the building. It follows that the demolition of any such feature, including the demolition of any gate, fence, or wall within or forming the boundary of the curtilage of the listed building (if it has done so since before July 1 1948) will constitute an alteration of the listed building. Depending on its effect on the character of the listed building, such demolition may require Listed Building Consent.

Thus the rules relating to the control of demolition are still unnecessarily complex, and the new Direction has done nothing to reduce that complexity. It simply resolves an anomaly that arose in relation to the 1995 Direction, due to its illegality in light of the judgment in the SAVE case.

© MARTIN H GOODALL