Scottish ministers have revoked their previous direction which removed much demolition from the definition of development: when is planning permission now required?

This article follows from my article (Journal, July, 51) indicating that as a result of a landmark ruling in England, the Scottish Government would reassess the procedures relating to the authorisation of development involving the demolition of buildings.

That took place on 25 July when ministers issued the Town and Country Planning (Demolition which is not Development) (Scotland) Revocation Direction 2011, which revokes the Town and Country Planning (Demolition which is not Development) (Scotland) Direction 2001.

The effect is that demolition of any building will be development for the purposes of the 1997 Planning Act. Ministers also issued a helpful tandem Circular 4/2011.

The 2011 Direction is required due to the European Court ruling Commission v Ireland (C-50/09), which concluded that demolition of certain buildings is capable of constituting a project for the purposes of the EIA Directive 85/007/EEC, and there had been a failure to implement the directive fully. The Court of Appeal in Save Britain’s Heritage v Secretary of State for Communities and Local Government [2011] EWCA Civ 334 followed that decision.

Permitted demolition

The 2001 Direction provided that the complete demolition of a wide range of buildings that were not dwellings or containing dwellings did not constitute “development” under s 26 of the 1997 Act, therefore did not require planning permission or to be referred to in a planning application.

Its revocation also means that in certain circumstances the request for an environmental impact assessment may be made under the EIA Regulations of 2011 (SSI 2011/139).

This does not mean that demolition will be subject to a formal planning application in every case, because class 70 of sched 1 to the 1992 General Permitted Development Order, as amended, grants deemed planning permission for demolition, subject to some important limitations and conditions, including the requirements for “prior approval” in certain cases. Permitted development rights (PDR) apply without the need for prior approval where demolition is:

  • urgently necessary in the interests of health and safety;
  • on land for which planning permission for redevelopment has been granted or deemed to be granted, and is necessary in order to implement that planning permission;
  • required by virtue of a planning agreement or obligation;
  • required or permitted under any other legislation.

PDR do not apply where a building has been made unsafe or uninhabitable through the action or neglect of anyone having interest in the land, and can be made secure through repairs or temporary support.

Unless the above categories or others apply, before exercising PDR a person must apply to the planning authority (PA) for a determination as to whether prior approval will be required for the method of the proposed demolition and any proposed restoration of the site. The PA has 28 days to consider whether it will be required. If it does not notify the applicant within that period, demolition may proceed according to the details submitted in the application for determination, or otherwise agreed. Applications have neighbour notification requirements. PDR can also be disapplied under an article 4 direction, often promoted in conservation areas.

PDR do not apply if an environmental statement under the EIA Regulations is required. This includes where demolition falls within any category listed in sched 1. If it falls within sched 2 and meets or exceeds the related thresholds or is in a sensitive area (as defined), PDR do not apply unless a screening opinion or screening direction indicating that EIA is not required has been obtained from the PA or ministers.

The circular suggests that ministers will consider amending class 70 of the 1992 Order to reduce the regulatory burden arising from revocation of the Direction.

Implications for developers

This depends on the stage reached in the planning process. If proposing a development requiring the demolition of buildings, they must ensure that the application for planning permission (and pre-application consultation notice if it is “major development”) contains reference to the demolition of the buildings concerned. Otherwise, they will need to make a separate application for prior approval, but should be aware that PDR will not be available if the development is EIA development under the EIA Regulations.

If a planning application has been submitted and notified, but does not contain the required reference, the developer could either resubmit, or more likely, in tandem with the planning application, submit an application for prior approval of the demolition. If planning permission is granted and does not contain permission for the demolition required, it is likely that an application for prior approval will be required before that planning permission can be implemented. That may have important consequences in terms of timing if the planning permission is shortly to expire.

Implications for authorities

PAs are likely to experience a rise in applications for prior approval, due to developers relying on PDR. PAs will also have to consider whether any demolition forms a sched 1 or sched 2 development under the EIA Regulations.

The Author
Alastair McKie, partner and head of Planning & Environment, Anderson Strathern LLP
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