Thursday 27 May 2021
Partial demolition in advance of permitted development
In paragraph 9.4.3 of Chapter 9 in the Third Edition of A Practical Guide to Permitted Changes of Use, I discussed works carried out to an agricultural building in advance of its residential conversion (and in advance of a prior approval application being made under Class Q of Part 3). However, I did not deal in that chapter with the question of partial demolition of the building in advance of such conversion.
The position regarding the entire demolition of a nearby or adjoining building that is physically separate from the subject building is straightforward. In many cases, such demolition will be permitted development under Class B of Part 11 (subject to compliance with the terms set out in Part 11).
However, the position in respect of the demolition of a complete building is wholly different from that applying to the partial demolition (or the demolition of part only) of a building. Although Shimizu (UK) Ltd v Westminster City Council [1997] 1 W.L.R. 168 related to a listed building (and specifically to the provisions of the ‘Listed Buildings Act’ of 1990), the judgment of the House of Lords in that case dealt with the issue of whether the definition of ‘demolition’ includes the demolition of part only of a building, or whether such partial demolition is in fact to be treated as an ‘alteration’.
This point was discussed in the speech of Lord Hope, where he observed on page 183: “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. I agree therefore with Millett L.J. [1995] 1 E.G.L.R. 167, 169, 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.” Conversely, therefore, partial demolition (or demolition of part only) of a building amounts to an alteration, rather than ‘demolition’.
The Town and Country Planning (Demolition - Description of Buildings) Direction 2021 (which, by virtue of section 55(2)(g), exempts from the definition of “development” in section 55 the demolition of any description of building specified in a direction given by the Secretary of State to local planning authorities) makes it clear that the reference to “building” in that direction does not include part of a building. Furthermore, although Class B in Part 11 of the Second Schedule to the GPDO permits “any building operation consisting of the demolition of a building” subject to certain restrictions and also a requirement for a prior approval application to ascertain whether the approval of the LPA is required as to the method of demolition and any proposed restoration of the site (in addition to certain other requirements), Article 2 of the GPDO provides that, in this Order, “building” includes any part of a building, except [inter alia] in Class B of Part 11. So this permitted development right does not extend to partial demolition (or the demolition of part only) of a building.
Demolition of an entire building can clearly be carried out as permitted development under Class B of Part 11, but partial demolition needs planning permission, but if it is an agricultural building, such partial demolition might possibly be permitted development under Part 6, either within Class A(a) [the carrying out on agricultural land comprised in an agricultural unit of 5 hectares or more in area of works for the erection, extension or alteration of a building] or Class B(a) [the carrying out on agricultural land comprised in an agricultural unit, of not less than 0.4 but less than 5 hectares in area, of development consisting of the extension or alteration of an agricultural building], but only where the development is reasonably necessary for the purposes of agriculture within the unit, and subject to a prior approval application being made.
The problem here is that paragraph Q.1(f) specifically rules out permitted development under Class Q of Part 3 if development has been carried out anywhere on the established agricultural unit since 20 March 2013 under Part 6, Classes A(a) or B(a) (or, where the development under Class Q begins after 20 March 2023, within 10 years before the date when development under Class Q begins). So the only partial demolition of the building that could be carried out without jeopardising the PD right under Class Q would be the demolition of internal partitions or other internal features which (provided that any such works affect only the interior of the building or do not materially affect the exterior appearance of the building) would be exempt from the definition of ‘development’ by virtue of section 55(2)(a) of the 1990 Act.
Partial demolition of an agricultural building will only be permitted development under Part 6 if it has been the subject of a prior approval application (and if it meets the agricultural need test). However, partial demolition of an agricultural building without planning permission (whether under Part III of the 1990 Act or under Article 3 and the Second Schedule of the GPDO) would be unlawful. Article 3(5) of the GPDO provides that the permission granted by Schedule 2 does not apply if, in the case of permission granted in connection with an existing building, the building operations involved in the construction of that building are unlawful. It might conceivably be argued that any unlawful partial demolition of the agricultural building could not have amounted to “building operations involved in the construction of that building”, but this would still appear to me to be problematic. It might, for instance, be argued against this that the building in its current (partially demolished) form results from building works to produce the building in that altered form, and that such building operations were therefore “involved in the construction” of the building to arrive at that altered form.
So the conclusion must be that partial demolition of an agricultural building in advance of its residential conversion without the risk of jeopardising the permitted development right under Class Q of Part 3 can only safely be undertaken under the terms of a planning permission granted under Part III of the 1990 Act. There should be no need in making such a planning application to demonstrate any agricultural or other need for such partial demolition, and there should in most cases be no planning objection to such partial demolition (assuming that the building is not a heritage asset, either designated or undesignated).
It is clear, despite the views expressed by some planning officers, that when a prior approval application under Class Q is submitted, the physical form and condition of the building must be considered as at that date. Where there has been any alteration to the building before the submission of the prior approval application, such as structural strengthening or partial demolition within the building, this will be immaterial if, by virtue of section 55(2)(a), it did not constitute development. Where that alteration (or those alterations) did amount to development under section 55, then it would fall to be considered in the manner outlined above. The point is that any such previous alterations cannot be taken into account by reference to paragraph Q.1(i) (because they do not form part of the development in relation to which the prior approval application is made); they will only be relevant to the question of possible disqualification under Article 3(5) or under paragraph Q.1(f).
Just to ensure that no-one is under any misapprehension, entire demoiltion of the subject building would result in the complete loss of permitted development rights, which can only subsist in respect of an extant building. If the building ceases to exist (for whatever reason), all existing use rights are lost, as is any permitted development right that might otherwsie have attached to that building.
© MARTIN H GOODALL
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Thanks Martin. Could an LPA conceivably refuse an application of planning permission for the partial demolition of an agricultural building if on the grounds that such works would in fact be permitted development under Part 6 i.e. generally if any works the sole subject to any planning application do not require planning permission by virtue of PD rights then may a LPA choose to refuse such application and notify the applicant that PP is not required and that instead a PA application would be required for the “alteration”?
ReplyDeleteFollowing on from that if the LPA did instead go ahead and grant PP for partial demolition/”alteration” despite the works falling within the description of works under Part 6 could the developer fall foul of the disqualifications under Q.1 i.e. if they carry out such works in advance of Class Q the works could still be argued to constitute works that could be “described” as works falling within Part 6 even if they were not carried out “under” Part 6 with a Part 6 PA notification?
The first of these points also occurred to me as I was writing this blog post, but the view I take is that it is up to the applicant to decide what application to make, even in circumstances where planning permission might arguably be unnecessary, or where a relevant PD right is available as an alternative. So I don’t think the LPA would have any excuse for refusing an application for planning permission on that ground.
DeleteThere is in fact an important distinction between these two options. A prior approval application under Part 6 would have to demonstrate that this partial demolition “is reasonably necessary for the purposes of agriculture within the unit”, whereas a planning application for the partial demolition of the building does not need to be related in any way to the agricultural use of the building or to the reasonable requirements of agriculture on the agricultural unit. In making the application, the applicant might simply explain that the part of the building they wish to demolish is “surplus to requirements” and leave it at that.
On the second point, I have always taken the view that works do not fall within either Class A(a) or Class B(a) of Part 6 unless, before they were commenced, a prior approval application was made to the LPA in accordance with the requirements of Part 6, and was either granted or waived by the LPA or was not determined within the 28-day time limit. So works carried out in accordance with a planning permission under Part III of the 1990 Act could certainly not be interpreted as development under Part 6, Class A(a) or B(a), of the Second Schedule to the GPDO (even if such development might in theory have been possible as PD under those provisions), because they have not involved compliance with the terms of the GPDO.
For a similar reason, such works if carried out without any permission at all, and without a prior approval application being made under Part 6, could not be interpreted as development under Part 6, Class A(a) or B(a) either. But in that case they would be unlawful and, as I mentioned in the blog post, they might fall foul of Article 3(5).
Another issue, which I have not discussed here, is the possibility raised with me by another correspondent that if the partial demolition, even though carried out separately, was arguably part of a single campaign of development, leading to the residential conversion of the building under Class Q, then that demolition might be seen as a premature commencement of development in advance of prior approval, which would disqualify it from being PD (see Winters v SSCLG). I don’t think this can automatically be assumed, for example, if the partial demolition was far enough in advance of the residential conversion proposal to be seen as an entirely separate development, but it is nevertheless a risk.