Friday, 3 October 2014
Control of demolition
The rules relating to demolition continue to cause confusion, particularly as regards the demolition (in whole or in part) of walls, gates and fences in conservation areas. The rules changed on 1 October 2013, and so (if one is dealing with an enforcement situation) it will depend on whether the demolition took place before or after 1 October 2013 as to which set of rules must be applied.
The demolition of buildings constitutes ‘building operations’ (see section 55(1A) of the 1990 Act) and therefore comes within the definition of ‘development’. However, by section 55(2)(g), some types of demolition are exempted from the definition of development where a Direction to that effect is made by the Secretary of State. The scope of the Town and Country Planning (Demolition – Description of Buildings) Direction 1995 was considerably cut down by the decision of the Court of Appeal in R (SAVE Britain’s Heritage) v. SSCLG  EWCA Civ 334, so that after that judgment the only demolition that was still exempt from the definition of development under that Direction was the demolition of any building with a cubic content not exceeding 50 cu m, and the whole or part of any gate, fence, wall or other means of enclosure, but the latter exemption did not extend to the whole or part of any gate, fence, wall or other means of enclosure in a conservation area. The Town and Country Planning (Demolition – Description of Buildings) Direction 2014 (replacing the 1995 Direction) is intended to regularise the position, in line with the SAVE judgment.
Most types of demolition that are not exempt from the definition of development under the ministerial Direction are Permitted Development under Part 31 of the Second Schedule to the GPDO, Class A of which covers any building operation consisting of the demolition of a building (other than gates, fences, walls or other means of enclosure - the demolition of these is dealt with under Class B).
By Article 1(1)(a) of the GPDO, the word “building” includes part of a building, except in a few specified parts of the Second Schedule to the Order, including Part 31, Class A (which permits the demolition of most buildings). Thus the demolition of part only of a building is not permitted development under Part 31, Class A.
By Article 1(1)(b) the word “building”, although it does not include any gate, fence, wall or other means of enclosure for most purposes under the GPDO, does include gates, fences, walls or other means of enclosure for the purposes of Class B of Part 31. Thus the combined effect paragraphs (a) and (b) of Article 1(1) is that the demolition of part only of any gate, fence, wall or other means of enclosure (other than in a conservation area – see below) is permitted by Part 31, Class B, because it is a building for the purposes of Class B, and the definition of a building includes part of a building (bearing in mind that the exclusion of part only of a building applies only to Class A, not to Class B).
[If you think this is a piece of absolute gobbledygook, you should try reading the legislation itself, of which this is an attempted translation into more or less plain English!]
Development is not permitted by Class A where the building has been rendered unsafe or otherwise uninhabitable by the action or inaction of any person having an interest in the land on which the building stands, if it is practicable to secure safety or health by works of repair or works for affording temporary support.
The permitted development under Part A is subject to a requirement that the developer must before beginning demolition apply to the LPA for a determination as to whether their prior approval will be required to the method of demolition and any proposed restoration of the site. (The detailed requirements of this procedure are set out in the text of the GPDO.)
There are several points to note here. First, in common with all other permitted development that is subject to prior notification (or prior approval) requirements under the GPDO, commencement in advance of such notification (or approval, where required) cannot be retrospectively validated or ratified. Failure to give the required notice before commencing the work (or to obtain prior approval where required) renders the entire operation unlawful. It cannot then be permitted development and will be vulnerable to enforcement action. On the other hand, under Part 31, Class A, the developer is entitled to proceed with the demolition after the expiry of 28 days following the date on which the application was received by the LPA, if by that time they have not made any determination as to whether their prior approval is required or they have not notified the applicant of their determination. [I suggest that ‘or’ has to be construed as ‘and’ in this context – i.e. the LPA must notify the applicant within the 28-day period, failing which the demolition can proceed in any event.]
The LPA’s control over demolition under these provisions is strictly limited. They cannot prevent the demolition if it falls within Part 31, Class A (unless, of course, they have made an appropriate Article 4 Direction, or in the unlikely event that there is a condition attached to a relevant planning permission that is effective in removing this particular PD right); they can only approve or disapprove the method of demolition and any proposed restoration of the site. This largely duplicates the local authority’s role under the Building Act 1984, section 80 of which requires that six weeks’ notice be given to the local authority’s building control section before commencing the demolition of any building. Nonetheless it is necessary to comply with both of these requirements.
Bearing in mind the definition of “building operations” in section 55(1A), and the definition of “building” for the purposes of the 1990 Act in section 336(1), which includes any part of a building, it might appear that the demolition of part of a building, is thereby included in the definition of development and that, being excluded from the permitted development authorised by Part 31, Class A, the demolition of part only of a building (other than any gate, fence, wall or other means of enclosure) requires planning permission.
However, it was held in Shimizu (UK) Ltd v. Westminster City Council  1 WLR 168;  1 All ER 481 (admittedly in a slightly different context) that demolition of only part of a building not amounting to demolition of the whole or substantially the whole of the building is to be regarded as an alteration of the building rather than as demolition. The practical effect of the Shimizu judgment is very limited, because partial demolition of a building, i.e. alteration of the building (assuming that it is not purely internal and/or that it does materially affect the external appearance of the building) also comes within the definition of “building operations” in section 55(1A). The effect of the judgment in Burroughs Day v. Bristol City Council  1 PLR 78 should, however, be borne in mind in determining whether or not such partial demolition (i.e. alteration) materially affects the external appearance of the building for the purposes of section 55(2)(a).
Whilst partial demolition of a building is excluded from permitted development under Class 31, Part A, it may (bearing in mind its classification by Shimizu as an alteration) be permitted development under some other part of the second schedule to the GPDO (e.g. Parts 1, 2, 6, 8 or 41, among others). Failing that, however, planning permission will be required.
The Shimizu judgment did not affect the need for Listed Building Consent for the partial demolition of a listed building, because this is required for any works to a listed building which would affect its character as such, but it did have the effect of removing the need for what used to be known as ‘Conservation Area Consent’ for the partial demolition of an unlisted building in a conservation area, although this now has to be considered in the light of further legislative changes in 2013 (as explained below).
Before discussing these changes, however, there is one point that requires further discussion. Nowhere in the legislation (either primary or subordinate) is “demolition” actually defined. We must therefore interpret the word according to its plain and ordinary meaning, subject to any relevant judicial authorities. One judicial authority that is clearly relevant in this context is the decision of the House of Lords in Shimizu.
The case was concerned with a listed building, and the decision of the House of Lords turned very much on precisely what was meant by a “listed building”. The definition of “demolition” fell to be considered in that context, but some of their Lordships’ observations on the meaning of “demolition” are of wider application. Lord Hope of Craighead pointed out that in the Court of Appeal Russell L.J. had said that the question whether a particular activity was “demolition” or “alteration” of a building was essentially a question of fact to be determined in the light of all the relevant circumstances. It was noted by Lord Hope that the discussion in the Court of Appeal was conducted throughout on the basis that the expression “building,” (except in so far as the context otherwise requires) includes “any part of a building”.
As Lord Hope put it, works of alteration to a building may take various forms, and the description which is to be applied to them will vary according to whether these works are to be seen in the context of their effect on the whole building or on the parts only of the building where the work is to be done. An architect who is asked to design a scheme to alter a building in order to modernise it or improve its accommodation may propose that parts of the existing structure should be removed. He may say that he needs to do this in order to replace that part with a different part or that he needs to do so in order to accommodate a new design which will not involve any replacement. He may describe what he proposes as the taking away or removal of that part, or he may say that that part needs to be demolished. But the various proposals which he makes and the words which he uses to describe them will all fall within the general description of works of alteration to the whole building [emphasis supplied]. The architect would no doubt resist the idea that he was proposing demolition of the building just because his scheme of alteration required the removal or demolition of parts of it in order to accommodate his scheme.
After examining the term “listed building”, Lord Hope then went on to consider the meaning of “demolition” in more detail. According to its ordinary meaning, the word “demolish” when used in reference to a building means to pull the building down — in other words, to destroy it completely and break it up. Lord Hope agreed, therefore, with Millett L.J. (when this case was before the Court of Appeal) when he said that demolition, with or without replacement, on the one hand, and alteration, on the other, are mutually exclusive concepts. In relation to a building, its destruction and breaking up cannot constitute a mere alteration. Once the works are over, the old building has gone. The problem which had led the majority in the Court of Appeal to hold that the works which were proposed to the chimneybreasts in this case amounted to works of demolition and not alteration arose when they applied these words to a part only of the listed building, i.e. to the chimney-breasts, not to the whole building.
Lord Hope did make a distinction in the case of what is popularly known as ‘façadism’, where the façade is left standing while clearing the remainder of the site for redevelopment. This would amount to the demolition of the building for all practical purposes. It would go far beyond what could reasonably be described as its alteration, as the works would be so extensive and so much would be pulled down and taken away, although the façade would be retained. It is, however, a question of fact for the decision of the relevant tribunal and so his lordship did not think that any more precise definition of this expression was required.
The House of Lords was referred by counsel to Lord Diplock's observations in Customs and Excise Commissioners v. Viva Gas Appliances Ltd  1 W.L.R. 1445 , where he said that the word “demolition” meant destroying the building as a whole. That case was concerned with a phrase in the description of an item in Group 8 of Schedule 4 to the Finance Act 1972 relating to value added tax, where there was no reference to “any part of a building.” What had to be construed was the meaning of “demolition” when it appeared in the phrase “in the course of the construction, alteration or demolition of any building.” Lord Hope preferred not to take Lord Diplock's observation out of its context, but the present writer would respectfully suggest that what Lord Diplock said in that case does lend weight to the distinction between “demolition” and “alteration”.
We come then to the special rules that apply to the demolition of unlisted buildings in a conservation area. [To avoid repeated references to ‘unlisted buildings’, I don’t propose to use this expression again below. The provisions that are about to be discussed do not apply to listed buildings, because Listed Building Consent is required under sections 7 and 8 of the Listed Buildings Act for both the demolition of and most (but not all) alterations to a listed building.]
Authorisation is required (under section 74 of the Listed Buildings Act) for the demolition of a building in a conservation area. With effect from 1 October 2013, it is Planning Permission that is now required, instead of the previous ‘Conservation Area Consent’ (which has been abolished), but the statutory provision under section 74 was in place before the House of Lords delivered their decision in Shimizu, yet clearly the provision in section 336 of the principal Act whereby the use of the word “building” includes any part of a building, did not prevent them from deciding that removing only part of a building does not amount to “demolition” but only to “alteration”.
The definition of a “building” for the purposes of section 74 of the Listed Buildings Act is the same as the definition in section 336(1) of the principal Act and includes any structure or erection and any part of a building as so defined, and so is wide enough to include gates, walls and fences within the conservation area (if they do not constitute part of a listed building). Thus the requirement for planning permission for demolition applies also to the demolition of the whole or substantially the whole of these structures in a conservation area, although (as noted above), following the Shimizu judgment, what used to be ‘Conservation Area Consent’ was not required for their partial demolition, because this was seen only as an alteration of the building or structure.
The question, however, now arises as to whether the further legislative changes that took effect on 1 October 2013 have had the effect of abrogating the rule in Shimizu, so far as concerns gates, fences, walls or other means of enclosure in a conservation area.
Prior to 1 October 2013, Class B of Part 31 authorised the demolition in whole or in part of any gate, fence, wall or other means or enclosure, whether inside or outside a conservation area, and this was not subject to any exclusions or conditions. Furthermore, no prior notification under Part 31 was required in this case. However, with effect from that date, by Article 2 of the Town and Country Planning (General Permitted Development) (Amendment) (England) (No. 4) Order 2013, Part 31 of Schedule 2 to the Town and Country Planning (General Permitted Development) Order 1995 (relating to the demolition of buildings) was amended by adding at the end of Class B:
“Development not permitted: B.1 Development is not permitted by Class B where the demolition is “relevant demolition” for the purposes of section 196D of the Act (demolition of an unlisted etc building in a conservation area).” Section 196D(3) defines “relevant demolition” as the demolition of a building that is situated in a conservation area in England, but is not a listed building, an ecclesiastical building to which the ecclesiastical exemption applies, or a scheduled ancient monument.
However, various buildings may be exempted under section 75 by a direction made by the Secretary of State, and Paragraph 31 of Circular 01/2001 contains such a direction under that section which exempts various descriptions of building from the effect of section 74, including "any gate, wall, fence or means of enclosure which is less than one metre high where abutting on a highway (including a public footpath or bridleway), waterway or open space, or less than two metres high in any other case". I have checked the list of cancelled circulars appended to the government’s on-line planning procedure guidance, and Circular 01/2001 does not appear on that list, so this direction remains in force. Thus the demolition of structures that come within that category is not “relevant demolition” for the purposes of section 74, and does not therefore require planning permission. This preserves the previous position, whereby Conservation Area Consent was not required for the demolition of such structures (i.e. the same category of structures that may be erected as Permitted Development under Part 2, Class A).
As noted earlier, by virtue of the definition of a “building” in Article 1(1) of the GPDO (and also section 336(1) of the principal Act), the word “building” includes part of a building. (The exclusion of part of a building by Article 1(1)(a) of the GPDO, applies only to Class A of Part 31, not to Class B). So demolition of part only of a gate, fence, wall or other means of enclosure in a conservation area is “relevant demolition” for the purposes of Section 196D of the principal Act, and thus (by virtue of paragraph B.1) is not permitted development. But this does not dispose of the question as to what actually constitutes “demolition” (in the absence of any statutory definition of that word).
Subject to the exclusion from permitted development of the demolition on or after 1 October 2013 of the whole or part of any gate, fence, wall or other means or enclosure in a conservation area, Part 31, Class B continues to apply to the demolition in whole or in part of any other gate, fence, wall or other means or enclosure (i.e. other than in a conservation area), and this remains free of any exclusions or conditions. As noted, prior notification under Part 31 is not required in that case.
The key to the question I have posed lies in the lack of any statutory definition of “demolition”. Because of this, it seems to me that the decision of the House of Lords in Shimizu must continue to apply, so far as concerns the identification of the precise type of development that is involved in a particular case, i.e. as to whether it is “demolition” or is “alteration”.
If it is the latter, then Part 2, Class A of the Second Schedule to the GPDO applies, rather than Part 31. Class A of Part 2 permits not only the erection or construction of a gate, fence, wall or other means or enclosure, but also its maintenance, improvement or alteration. It seems to me that if a part of a wall is removed in order to insert new gates, the removal of that part of the wall (even though it may be described in purely colloquial terms as “partial demolition”) is in fact merely an alteration, as there remains a wall or other means of enclosure, now with new gates inserted in it, after the works are completed. Bearing in mind Lord Hope’s observations in Shimizu, and viewing the works as a whole, none of these works can realistically be described as “demolition”. They are clearly authorised in their entirety by Part 2 of the Second Schedule rather than any part of them having to rely on Part 31, Class B for their authorisation. It follows that, in this case, the provisions of paragraph B.1 in Part 31 do not apply, and it also follows that no “relevant demolition” for the purposes of Section 196D of the principal Act has taken place.
This would apply equally to other alterations to a wall, gate or fence in a conservation area, for example if it was simply lowered in height. In light of Shimizu, it is an alteration, rather than demolition, because there is still a gate, wall, fence or other means of enclosure in place after the works have been completed. This too, I would submit, is therefore development that is wholly authorised by Part 2 (subject to the conditions and limitations set out there). On the other hand, the entire demolition of a length of the wall without its being replaced (for example, by the insertion of gates) might perhaps be seen as demolition, rather than as the maintenance, improvement or alteration of the wall, and would therefore be governed by Part 31, Class B, and would be subject to the exclusion in paragraph B.1, and section 196D (if it is in a conservation area), although this is by no means certain. As always this is bound to be ‘a matter of fact and degree’, and so any judgment on this issue will inevitably be fact-dependent in any particular case. Planning officers should therefore proceed with caution when dealing with such cases, and not jump to the conclusion that unauthorised demolition has necessarily taken place.
If any readers can add to this discussion by reference either to the interpretation of the legislative provisions or by reference to the applicability of Shimizu or any other relevant judicial authority, I would welcome their comments. Meanwhile, I must go and lie down in a darkened room.
[UPDATE (9.10.14): I am grateful to two correspondents who have drawn my attention to the direction in Circular 01/2001 exempting the demolition of many walls, gates, fences, etc. from the effect of section 74. The text above has been now been amended to include a reference to this direction.]
© MARTIN H GOODALL