Demolition job

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The Government has published a new Demolition Direction, which confirms that permission is only required for demolition of buildings larger than 50m3 GEA.  This reflects the position following the Court of Appeal’s judgment in the R (Save Britain’s Heritage) v CLG [2011].  The court was concerned in Save that by carving out various buildings (including those that were listed, in a conservation area, or non-residential), the previous 1995 Direction avoided proper consideration of the need for Environmental Impact Assessment. EIA is not required for Listed Building or Conservation Area Consents.

The publication of the new Direction is a reminder that when demolishing buildings, owners need to be aware of the current position:

  • Size is key: building demolitions over 50m3 GEA are development requiring planning permission.
  • Permitted Development rights are generally* (but see EIA, conservation areas, PD below) available, but the PD regime requires owners to seek ‘prior approval’ from the local planning authority on the demolition method is now engaged.
  • EIA*: PD rights do not apply to EIA development.  Reliance on PD rights and ‘prior approval’ will often require some form of EIA screening.
  • Conservation Areas*: The requirement for Conservation Area Consent for demolition of buildings in a CA was abolished in England with effect from 1 October 2013.  PD demolition rights no longer apply in these areas, however, demolition will be an offence unless the building is under 115m3 GEA (or must be demolished due to a s106 agreement, enforcement notice or planning condition).  One oddity of the changes is that demolition of buildings of less than 115m3 GEA in these areas still require a planning permission, albeit that the criminal offence does not apply.
  • PD Games: Several authorities have used the post-Save need to rely on PD baringrights to issue Article 4 directions withdrawing demolition rights, to protect buildings that are neither listed nor in a conservation area.  The Baring Hall Hotel in Lewisham was protected from the use of PD rights by an Article 4 direction.  The planning authority’s subsequent refusal of express permission to demolish was upheld by the Planning Inspectorate on appeal.
  • Viability: clearing a site may be desirable to prevent the building becoming listed (either as a heritage asset or an Asset of Community Value).  In most cases, though, doing so will significantly reduce the Existing Use Value and risk creating an artificially low benchmark for development profitability when running toolkit appraisals in connection with affordable housing and other obligations.
  • Community Infrastructure Levy: demolished floorspace can be offset against CIL liability, but only where it was on-site at the relevant ‘first permits’ date (and part of it had been in continuous lawful use for at least six months during the preceding three years).  This will often be the point at which pre-commencement requirements are discharged. Demolishing too early, particularly where it is done in reliance on PD rights, will kill off what might be a substantial CIL saving.  Developers should ensure their phasing conditions and overall strategy are carefully drawn to maximise the ability to offset existing floorspace and proceed with site preparation work, whilst limiting the cashflow burden of CIL.  For many schemes this requires careful thought.