A recent case involving one of the Essex districts (advised by Essex Legal Services) sparked questions about the primacy of planning permission against permitted development rights in relation to demolition. Jacqueline Millward and Matthew Fox report.
Demolition was included in the amended definition of ‘building operations’ in section 55(1A)(a) the Town and Country Planning Act 1990 (the 1990 Act) subject to some excepted categories. It was first included in the Town and Country Planning (General Permitted Development) Order 1995 (the GDPO) and an accompanying circular, Department of Environment Circular 10/95, dealt with the new provisions.
Paragraph 29 says: "Where the demolition of one or more buildings is required as part of a redevelopment for which planning permission is sought, the developer should include details of the demolition in his application for planning permission. These details should be considered by the local planning authority along with other aspects of the redevelopment. Permission to demolish the building or buildings according to such details as are agreed by the local planning authority should be included in any planning permission which may be granted for the development. By virtue of article 3(4) of the Permitted Development Order, permitted development rights do not permit the demolition of a building contrary to any condition which has been imposed by a planning permission granted or deemed to be granted under Part III of the 1990 Act."
Paragraph 30 goes on to say: "Where it is not clear from a planning application whether the proposed development involved demolition, the local planning authority should seek clarification from the applicant before determining the application. Even where demolition of a building on land over which a planning permission has been granted is not required for the redevelopment of the site, the authority may impose a condition withdrawing permitted development rights, where reasonable, for the demolition of that building."
And in relation to non-compliance, paragraph 33 says: "where an enforcement notice is issued in respect of a breach of planning control consisting of the demolition of a building, the notice may require the construction of a replacement building which is as similar as possible to the demolished building."
Demolition under Part 31 Schedule 2 of the GPDO gives Permitted Development rights for demolition that has obtained prior approval. An Application for Prior Notification of Proposed Demolition form is submitted to the Local Planning Authority and triggers a 28-day process in which the Local Planning Authority will determine whether or not their formal approval is needed for the works. If so, then details of the method of demolition and means of restoring the site need to be approved
Para A.2 of Part 31 Schedule 2 of the GPDO makes clear that such prior approval is, however, not needed for demolition that is considered to be ‘excluded demolition’. ‘Excluded demolition’ is defined at para A.3 to mean ‘any development on land which is the subject of a planning permission, for the redevelopment of the land’.
The logic appears to be unassailable – you either need approval by GDPO for demolition or a planning permission for demolition and redevelopment.
The question in our recent case was, therefore, if a planning permission with pre commencement conditions is extant and demolition is therefore considered to be ‘excluded demolition’, could PD rights be utilised, and if so, without prior approval?
Following on from this, if PD rights applied, could it therefore be said that such works could be undertaken without compliance with the permission and its pre-commencement conditions?
The reasoning behind this viewpoint was that, as the GPDO provides a general permission which sits alongside a specific planning permission, therefore developers have the choice of which of these permissions to choose from.
Clearly this would be unacceptable position to local planning authorities as, if this principle was extended to all sites, it would mean that any demolition in advance of stated re-development which has been permitted by planning permission could take place without the need for prior approval, and without compliance with pre-commencement conditions.
This is clearly an undesirable position, and therefore two key points can be made against it:
Firstly, Article 3 (4) of the GPDO specifically states that “Nothing in this Order permits development contrary to any condition imposed by any planning permission granted or deemed to be granted under Part III of the Act otherwise than by this Order”. This provision clearly shows that a planning permission will take primacy against permitted development rights.
Secondly, planning permission can only logically be considered to be within the definition of ‘excluded demolition’ not requiring prior approval because the prior approval mechanisms would have taken place as part of the planning application process.
Given the effect of Article 3(4), it is clear that planning permission will override PD rights in demolition, and that there must be compliance with pre-commencement conditions imposed on a redevelopment planning permission. In a financial climate where developers will be keen to get development started (possibly to increase the value of the site or to decrease liabilities) as soon as possible and in the face of what can be onerous pre-commencement conditions, it will be important for local planning authorities to stand their ground on this issue.
Counsel’s opinion has supported the position taken by Essex Legal Services.
The appropriate course of action seems to be a Temporary Stop Notice (‘TSN’) to stop the demolition followed up by an Enforcement Notice if necessary.
Authorities can be reluctant to use TSNs due to the onerous statutory compensation provisions however, as this case demonstrates, local planning authorities should not be afraid to use them where the statutory provisions are clear. The firm conclusion in these circumstances is that the limited rights under the GPDO do not override the need to comply with pre-commencement conditions.